EXHIBIT 10.3
Lease between
Sobrato Interests III and Nvidia Corporation
Section......................................................................................................Page #
Parties...........................................................................................................1
Premises..........................................................................................................1
Definitions....................................................................................................1
Description....................................................................................................2
Use...............................................................................................................2
Permitted Uses.................................................................................................2
Uses Prohibited................................................................................................2
Advertisements and Signs.......................................................................................3
Covenants, Conditions and Restrictions.........................................................................3
Term and Rental...................................................................................................3
Base Monthly Rent..............................................................................................3
Late Charges...................................................................................................3
Security Deposit...............................................................................................4
Construction......................................................................................................5
Building Shell Construction....................................................................................5
Tenant Improvement Construction................................................................................5
Pricing........................................................................................................6
Change Orders..................................................................................................6
Building Shell Costs...........................................................................................7
Tenant Improvement Costs.......................................................................................7
Force Majeure..................................................................................................8
General Contractor Overhead & Profit...........................................................................8
Tenant Delays..................................................................................................8
Insurance......................................................................................................8
Punch List & Warranty..........................................................................................8
Other Work by Tenant...........................................................................................9
Landlord's Failure to Complete Construction....................................................................9
Acceptance of Possession and Covenants to Surrender...............................................................9
Delivery and Acceptance........................................................................................9
Condition Upon Surrender......................................................................................10
Failure to Surrender..........................................................................................10
Alterations and Additions........................................................................................11
Tenant's Alterations..........................................................................................11
Free From Liens...............................................................................................11
Compliance With Governmental Regulations......................................................................11
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Maintenance of Premises..........................................................................................12
Landlord's Obligations........................................................................................12
Tenant's Obligations..........................................................................................12
Landlord and Tenant's Obligations Regarding Reimbursable Operating Costs......................................12
Reimbursable Operating Costs..................................................................................12
Tenant's Allocable Share......................................................................................13
Waiver of Liability...........................................................................................13
Hazard Insurance.................................................................................................13
Tenant's Use..................................................................................................13
Landlord's Insurance..........................................................................................13
Tenant's Insurance............................................................................................14
Waiver........................................................................................................14
Taxes............................................................................................................14
Utilities........................................................................................................15
Toxic Waste and Environmental Damage.............................................................................15
Tenant's Responsibility.......................................................................................15
Tenant's Indemnity Regarding Hazardous Materials..............................................................15
Actual Release by Tenant......................................................................................16
Environmental Monitoring......................................................................................17
Tenant's Default.................................................................................................17
Remedies......................................................................................................17
Right to Re-enter.............................................................................................18
Abandonment...................................................................................................18
No Termination................................................................................................18
Non-Waiver....................................................................................................18
Performance by Landlord.......................................................................................19
Habitual Default..............................................................................................19
Landlord's Liability.............................................................................................19
Limitation on Landlord's Liability............................................................................19
Limitation on Tenant's Recourse...............................................................................19
Indemnification of Landlord...................................................................................20
Destruction of Premises..........................................................................................20
Landlord's Obligation to Restore..............................................................................20
Limitations on Landlord's Restoration Obligation..............................................................20
Condemnation.....................................................................................................21
Assignment or Sublease...........................................................................................21
Consent by Landlord...........................................................................................21
Assignment or Subletting Consideration........................................................................22
No Release....................................................................................................22
Reorganization of Tenant......................................................................................22
Permitted Transfers...........................................................................................23
Effect of Default.............................................................................................23
Effects of Conveyance.........................................................................................23
Successors and Assigns........................................................................................23
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Option to Extend the Lease Term..................................................................................24
Grant and Exercise of Option..................................................................................24
Determination of Fair Market Rental...........................................................................24
Resolution of a Disagreement over the Fair Market Rental......................................................25
Personal to Tenant............................................................................................25
General Provisions...............................................................................................25
Attorney's Fees...............................................................................................25
Authority of Parties..........................................................................................25
Brokers.......................................................................................................25
Choice of Law.................................................................................................26
Dispute Resolution............................................................................................26
Entire Agreement..............................................................................................27
Entry by Landlord.............................................................................................27
Estoppel Certificates.........................................................................................27
Exhibits......................................................................................................28
Interest......................................................................................................28
Modifications Required by Lender..............................................................................28
No Presumption Against Drafter................................................................................28
Notices.......................................................................................................28
Property Management...........................................................................................28
Rent..........................................................................................................28
Representations...............................................................................................28
Rights and Remedies...........................................................................................29
Severability..................................................................................................29
Submission of Lease...........................................................................................29
Subordination.................................................................................................29
Survival of Indemnities.......................................................................................29
Time..........................................................................................................29
Transportation Demand Management Programs.....................................................................29
Waiver of Right to Jury Trial.................................................................................30
Right of First Offer to Purchase.................................................................................30
Grant and Exercise of Option..................................................................................30
Exclusions....................................................................................................30
EXHIBIT A - Building and Project.................................................................................32
EXHIBIT B - CC&R Declaration.....................................................................................33
EXHIBIT C - Draft Letter of Credit...............................................................................34
EXHIBIT D - Building Shell Definition............................................................................35
EXHIBIT E - Building Shell Plans and Specifications..............................................................38
EXHIBIT F - Tenant Improvement Plans and Specifications..........................................................39
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1. Parties: THIS LEASE, is entered into on this 4th day of April, 2000,
("Effective Date") between Sobrato Interests III, a California Limited
Partnership, whose address is 10600 North De Anza Boulevard, Suite 200,
Cupertino, CA 95014 and Nvidia Corporation, a Delaware Corporation, whose
address is 3535 Monroe Street, Santa Clara, California, 95051, hereinafter
called respectively Landlord and Tenant.
2. PREMISES:
A. Definitions.
i. Building C. The term "Building C" shall mean that three (3)
story steel frame building containing approximately 125,000 rentable square feet
and all Tenant Improvements installed therein to be constructed by Landlord and
leased by Tenant pursuant to the terms of this Lease in the location labeled as
Building C on Exhibit "A" attached hereto and commonly known as 2711 San Tomas
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Expressway, Santa Clara, California.
ii. Building B. The term "Building B" shall mean that three (3)
story steel frame building containing approximately 125,000 rentable square feet
which Landlord intends to construct in the location labeled as Building B on
Exhibit "A" and commonly known as 2731 San Tomas Expressway, Santa Clara,
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California.
iii. Building A. The term "Building A" shall mean that three (3)
story steel frame building containing approximately 125,000 rentable square feet
which Landlord intends to construct in the location labeled as Building A on
Exhibit "A" and commonly known as 2721 San Tomas Expressway, Santa Clara,
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California.
iv. Building D. The term "Building D" shall mean that three (3)
story steel frame building containing approximately 125,000 rentable square feet
which Landlord intends to construct in the location labeled as Building D on
Exhibit "A" and commonly known as 2701 San Tomas Expressway, Santa Clara,
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California.
v. Common Area. The term "Common Area" shall initially mean
that certain real property and all improvements thereon surrounding Building A,
Building C and Building D, including surface parking, a multi-level parking
structure to accommodate approximately 550 cars, and all landscaped areas. At
completion of Building B, the term "Common Area" shall mean that certain real
property and all improvements thereon surrounding the Building A, Building B,
Building C, and Building D, including surface parking to accommodate
approximately 1,150 cars, a multi-level parking structure estimated to cost Five
Million Dollars ($5,000,000.00) to accommodate approximately 550 cars, and all
landscaped areas. Tenant shall have the non-exclusive right to utilize the
Common Area as specifically set forth in a Declaration of Covenants, Conditions
and Restrictions (" CC&R Declaration") to be prepared by Landlord and attached
to the Lease as Exhibit "B" within thirty (30) days following Lease execution.
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The CC&R Declaration shall be subject to Tenant's approval, which approval shall
not be unreasonably withheld or delayed.
vi. Project. The term "Project" shall be that certain real
property consisting of approximately 19.2 acres at the corner of San Tomas
Expressway and Walsh Avenue in Santa Clara, California, and all improvements
constructed thereon consisting, at full buildout, of Building A, Building B,
Building C, Building D, and the Common Area as shown in Exhibit "A". Tenant
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shall be responsible to ensure that the total number of vehicles parked in the
Project by employees and invitees of Tenant pursuant to this
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Lease does not exceed 425.
vii. Premises. The term "Premises" shall mean Building C, also
referred to herein as "Building", and a non-exclusive right to use the Common
Area. Unless expressly provided otherwise, the term Premises as used herein
shall include the Tenant Improvements (defined in Section 5.B) constructed by
Tenant pursuant to Section 5.B. Tenant acknowledges Landlord's right to and
hereby consents to Landlord's construction of the Project and Common Area.
B. Grant: Landlord hereby leases the Premises to Tenant, and
Tenant hires the Premises from Landlord.
C. Recordation of Parcel Map and Declaration: Tenant consents to
recordation by Landlord of a Parcel Map ("Parcel Map") and CC&R Declaration
provided, however, that Landlord shall not record the Parcel Map and CC&R
Declaration until Tenant has had fifteen (15) business days to review. Landlord
is seeking approval of the Parcel Map and CC&R Declaration to subdivide the
existing parcel into smaller lots to facilitate Landlord's operation,
construction, financing, lease and/or sale of the Project in parts. Landlord's
failure to obtain approval of the Parcel Map or CC&R Declaration shall in no way
invalidate this Lease. In the event the Parcel Map and CC&R Declaration are
recorded by Landlord, the Section 2.A.vi shall be replaced by following: The
term "Premises" shall mean (i) the Building; and (ii) the nonexclusive right to
use the Common Area in accordance with the terms and conditions of the CC&R
Declaration and this Lease. This Lease shall be subject and subordinate in all
respects to the CC&R Declaration, as the same may be amended from time to time.
Tenant covenants and agrees to refrain from doing or causing to be done, or
permitting any thing or act to be done, which would constitute a default under
the CC&R Declaration or which would or might make Landlord liable for any
damages, claims or penalty. All assessments charged to the Premises pursuant to
the CC&R Declaration shall constitute a part of Tenant's Allocable Share of
Reimbursable Operating Costs pursuant to Section 8 of this Lease.
3. USE:
A. Permitted Uses: Tenant shall use the Premises as permitted under
applicable zoning laws only for the following purposes and shall not change the
use of the Premises without the prior written consent of Landlord: Office,
research and development, sales, testing, marketing, production, distribution,
failure analysis, light manufacturing, ancillary storage and other incidental
and similar uses. Tenant shall use only the number of parking spaces allocated
to Tenant under this Lease. All commercial trucks and delivery vehicles shall
(i) be parked at the rear of the Building, (ii) loaded and unloaded in a manner
which does not interfere with the businesses of other occupants of the Project,
and (iii) permitted to remain within the Project only so long as is reasonably
necessary to complete the loading and unloading. Landlord makes no
representation or warranty that any specific use of the Premises desired by
Tenant is permitted pursuant to any Laws.
B. Uses Prohibited: Tenant shall not commit or suffer to be committed on
the Premises any waste, nuisance, or other act or thing which may disturb the
quiet enjoyment of any other tenant in or around the Premises, nor allow any
sale by auction or any other use of the Premises for an unlawful purpose. Tenant
shall not (i) damage or overload the electrical, mechanical or plumbing systems
of the Premises, (ii) attach, hang or suspend anything from the ceiling, walls
or columns of the building or set any load on the floor in excess of the load
limits for which such items are designed, or (iii) generate dust, fumes or waste
products which create a fire or health hazard or damage the Premises or any
portion of the Project, including without limitation the soils or ground water
in or around the Project. No materials, supplies, equipment, finished products
or semi-finished products, raw materials or articles of any nature, or any waste
materials, refuse, scrap or debris, shall be stored upon or permitted to remain
on any portion of the Premises outside of the Building without
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Landlord's prior approval, which approval may be withheld in its sole
discretion.
C. Advertisements and Signs: Tenant will not place or permit to be placed,
in, upon or about the Premises any signs not approved by the city and other
governing authority having jurisdiction. Tenant will not place or permit to be
placed upon the Premises any signs, advertisements or notices without the
written consent of Landlord as to type, size, design, lettering, coloring and
location, which consent will not be unreasonably withheld. Any sign placed on
the Premises shall be removed by Tenant, at its sole cost, prior to the
Expiration Date or promptly following the earlier termination of the Lease, and
Tenant shall repair, at its sole cost, any damage or injury to the Premises
caused thereby, and if not so removed, then Landlord may have same so removed at
Tenant's expense.
D. Covenants, Conditions and Restrictions: This Lease is subject to the
effect of (i) any covenants, conditions, restrictions, easements, mortgages or
deeds of trust, ground leases, rights of way of record and any other matters or
documents of record; and (ii) any zoning laws of the city, county and state
where the Building is situated (collectively referred to herein as
"Restrictions") and Tenant will conform to and will not violate the terms of any
such Restrictions.
4. TERM AND RENTAL:
A. Base Monthly Rent: The term ("Lease Term") shall be for one hundred
twenty eight (128) months, commencing on substantial completion of construction
as determined pursuant to Section 5.B (the "Commencement Date") estimated to
occur on July 1, 2001 and ending one hundred twenty eight (128) months
thereafter, ("Expiration Date"). Notwithstanding the Parties agreement that the
Lease Term begins on the Commencement Date, this Lease and all of the
obligations of Landlord and Tenant shall be binding and in full force and effect
from and after the Effective Date. In addition to all other sums payable by
Tenant under this Lease, Tenant shall pay base monthly rent ("Base Monthly
Rent") for the Premises according to the following schedule:
Months 01 - 12: $393,750.00 ($3.15 p.s.f.)
Months 13 - 24: $407,500.00 ($3.26 p.s.f.)
Months 25 - 36: $421,250.00 ($3.37 p.s.f.)
Months 37 - 48: $436,250.00 ($3.49 p.s.f.)
Months 49 - 60: $451,250.00 ($3.61 p.s.f.)
Months 61 - 72: $467,500.00 ($3.74 p.s.f.)
Months 73 - 84: $483,750.00 ($3.87 p.s.f.)
Months 85 - 96: $501,250.00 ($4.01 p.s.f.)
Months 97 - 108: $518,750.00 ($4.15 p.s.f.)
Months 109 - 120: $536,250.00 ($4.29 p.s.f.)
Months 121 - 128: $555,000.00 ($4.44 p.s.f.)
Upon Substantial Completion of construction, the Building shall be measured by
Tenant's Architect (as defined in Section 5.B) from outside wall/glass to
outside wall/glass of each floor, without deductions, to arrive at the actual
rentable square footage ("Rentable Square Footage"). If the Rentable Square
Footage differs from 125,000 square feet, the Base Monthly Rent for each year of
the Lease Term shall be modified so as to equal the product of (i) the Rentable
Square Footage, and (ii) the price-per-square-foot rate for each year as shown
in the above schedule.
Base Monthly Rent shall be due in advance on or before the first day of each
calendar month during the Lease Term. All sums payable by Tenant under this
Lease shall be paid to Landlord in lawful money of the United States of America,
without offset or deduction and without prior notice or demand, at the address
specified in Section 1 of this Lease or at such place or places as may be
designated in writing by Landlord during the Lease Term. Base Monthly Rent for
any period less than a calendar month shall be a pro rata portion of the monthly
installment. Concurrently with Tenant's execution of this Lease, Tenant shall
pay to Landlord the sum of One Hundred Ninety Six Thousand Eight Hundred Seventy
Five Dollars ($196,875.00) as prepaid rent for one half of the first month of
the Lease. The remaining half ($196,875.00) shall be paid by Tenant to Landlord
no later than December 20, 2000.
B. Late Charges: Tenant hereby acknowledges that late payment by Tenant to
Landlord of Base Monthly Rent and other sums
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due hereunder will cause Landlord to incur costs not contemplated by this Lease,
the exact amount of which is extremely difficult to ascertain. Such costs
include but are not limited to: administrative, processing, accounting, and late
charges which may be imposed on Landlord by the terms of any contract, revolving
credit, mortgage, or trust deed covering the Premises. Accordingly, if any
installment of Base Monthly Rent or other sum due from Tenant shall not be
received by Landlord or its designee within five (5) days after Tenant has
received written notice from Landlord of non-payment, Tenant shall pay to
Landlord a late charge equal to five (5%) percent of such overdue amount, which
late charge shall be due and payable on the same date that the overdue amount
was due. The parties agree that such late charge represents a fair and
reasonable estimate of the costs Landlord will incur by reason of late payment
by Tenant, excluding interest and attorneys fees and costs. If any rent or other
sum due from Tenant remains delinquent for a period in excess of thirty (30)
days then, in addition to such late charge, Tenant shall pay to Landlord
interest on any rent that is not paid when due at the Agreed Interest Rate
specified in Section 19.J following the date such amount became due until paid.
Acceptance by Landlord of such late charge shall not constitute a waiver of
Tenant's default with respect to such overdue amount nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder. In the event
that a late charge is payable hereunder, whether or not collected, for three (3)
consecutive installments of Base Monthly Rent, then the Base Monthly Rent shall
automatically become due and payable quarterly in advance, rather than monthly,
notwithstanding any provision of this Lease to the contrary.
D. Security Deposit: Unless Tenant elects to post a Letter of Credit as
provided below, Tenant shall deposit with Landlord prior to the Commencement
Date the sum of Three Hundred Ninety Four Thousand Dollars ($394,000.00)
("Security "Deposit"). Landlord shall not be deemed a trustee of the Security
Deposit, may use the Security Deposit in business, and shall not be required to
segregate it from its general accounts. Tenant shall not be entitled to interest
on the Security Deposit. If Tenant defaults with respect to any provisions of
the Lease, including but not limited to the provisions relating to payment of
Base Monthly Rent or other charges, Landlord may, to the extent reasonably
necessary to remedy Tenant's default, use any or all of the Security Deposit
towards payment of the following: (i) Base Monthly Rent or other charges in
default; (ii) any other amount which Landlord may spend or become obligated to
spend by reason of Tenant's default including, but not limited to Tenant's
failure to restore or clean the Premises following vacation thereof. If any
portion of the Security Deposit is so used or applied, Tenant shall, within ten
(10) days after written demand from Landlord, deposit cash with Landlord in an
amount sufficient to restore the Security Deposit to its full original amount,
and shall pay to Landlord such other sums as necessary to reimburse Landlord for
any sums paid by Landlord. If Tenant shall be in monetary default more than
three (3) times in any twelve (12) month period, irrespective of whether or not
such default is cured, then the Security Deposit shall, within ten (10) days
after demand by Landlord, be increased by Tenant to an amount equal to three (3)
times the Base Monthly Rent. Tenant may not assign or encumber the Security
Deposit without the consent of Landlord. Any attempt to do so shall be void and
shall not be binding on Landlord. The Security Deposit shall be returned to
Tenant within thirty (30) days after the Expiration Date and surrender of the
Premises to Landlord, less any amount deducted in accordance with this Section,
together with Landlord's written notice itemizing the amounts and purposes for
such deduction. In the event of termination of Landlord's interest in this
Lease, Landlord may deliver or credit the Security Deposit to Landlord's
successor in interest in the Premises and thereupon be relieved of further
responsibility with respect to the Security Deposit.
Landlord agrees that in lieu of a cash Security Deposit, Tenant may deposit a
letter of credit ("Letter of Credit") substantially in the form attached hereto
as Exhibit "C". Landlord shall be entitled to draw against the Letter of Credit
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at any time provided only that Landlord certifies to the issuer of the Letter of
Credit that Tenant is in default under the Lease. Tenant shall keep the
Page 4
letter of credit in effect during the entire Lease Term, as the same may be
extended, plus a period of four (4) weeks after expiration of the Lease Term. At
least thirty (30) days prior to expiration of any Letter of Credit, the term
thereof shall be renewed or extended for a period of at least one (1) year.
Tenant's failure to so renew or extend the Letter of Credit shall be a material
default of this Lease by Tenant. In the event Landlord draws against the Letter
of Credit, Tenant shall replenish the existing Letter of Credit or cause a new
Letter of Credit to be issued such that the aggregate amount of letters of
credit available to Landlord at all times during the Lease Term is the amount of
the Security Deposit originally required.
5. CONSTRUCTION:
A. Building Shell Construction: Landlord shall cause the Building Shell (as
defined on the Building Shell Definition attached as Exhibit "D") and certain
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Building Core Improvements (as defined below) to be constructed by Landlord's
affiliated construction company, Sobrato Construction Corporation ("General
Contractor") in accordance with the Building Shell plans and guideline
specifications prepared by Form 4 Associates ("Landlord's Architect") and
attached as Exhibit "E" ("Building Shell Plans and Specifications"). The
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Building Shell Plans and Specifications include certain elements of the Building
core ("Building Core Improvements") which is defined as those items typically
associated in the industry with an office building core including elevators,
restrooms, fire sprinklers, HVAC and electrical systems distributed to each
floor, exiting stair finishes, and a finished building lobby. Although certain
Building Core Improvements have been designed by Landlord's Architect and
incorporated into the Building Shell Plans and Specifications, it is understood
and agreed that Building Core Improvements are classified as part of Tenant
Improvements and all costs associated with the design and construction thereof
shall be paid by Tenant pursuant to Section 5.F. below. The Building Shell and
Building Core Improvements shall be constructed in a good and workmanlike
fashion and in compliance with all codes, laws, rules and regulations of
applicable governmental authority. Landlord shall assign to Tenant any
warranties related to the Building Shell and Building Core Improvements which
would reduce Tenant's maintenance obligations hereunder and shall cooperate with
Tenant to enforce all such warranties.
B. Tenant Improvement Construction: Tenant, at Tenant's sole cost and
expense, shall retain an interior architect ("Tenant's Architect") to prepare
plans and outline specifications to be attached as Exhibit "F" ("Tenant
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Improvement Plans and Specifications") with respect to the construction of the
balance of the improvements to the interior of the Premises ("Tenant
Improvements") necessary for Tenant's use and occupancy of the Building.
Landlord shall cause Tenant Improvements to be constructed by the General
Contractor in accordance with the Tenant Improvement Plans and Specifications.
The Tenant Improvement Plans and Specifications shall be completed for all
aspects of the work by November 30, 2000 with all detail necessary for submittal
to the city for issuance of building permits and for construction and shall
include any information required by the relevant agencies regarding Tenant's use
of Hazardous Materials if applicable. The Tenant Improvements shall consist of
all items not included within the scope of the Building Shell Definition,
including all Building Core Improvements. All Tenant Improvements shall be
subject to Landlord's approval, which shall not be unreasonably withheld,
conditioned or delayed. The Tenant Improvement Plans and Specifications shall
provide for a minimum build-out in all areas of the Premises consisting of: (i)
fire sprinklers, (ii) floor coverings, (iii) t-bar suspended ceiling (iv)
distribution of the HVAC system, (v) 2' x 4' drop-in florescent lighting, and
(vi) any other work required by the City of Santa Clara necessary to obtain a
Certificate of Occupancy. Tenant shall not have the right to delay the
completion of the foregoing minimum Tenant Improvement build-out. The Tenant
Improvement Plans and Specifications shall be prepared in sufficient detail to
allow General Contractor to construct the Tenant Improvements. The Tenant
Improvements shall not be removed or altered by
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Tenant without the prior written consent of Landlord as provided in Section 7
below. Tenant shall have the right to depreciate and claim and collect any
investment tax credits related to the Tenant Improvements. Upon expiration of
the Lease Term or any earlier termination of the Lease, the Tenant Improvements
shall become the property of Landlord and shall remain upon and be surrendered
with the Premises, and title thereto shall automatically vest in Landlord
without any payment therefore.
Landlord shall use its reasonable best efforts to obtain a building permit from
the City of Santa Clara for the Tenant Improvements as soon as possible after
submittal of the Tenant Improvement Plans and Specifications, and thereafter to
cause the General Contractor to Substantially Complete the Tenant Improvements.
The Tenant Improvements shall be deemed substantially complete when: (i) Tenant
Improvements have been substantially completed in accordance with the Tenant
Improvement Plans and Specifications, as evidenced by the issuance of a
certificate of occupancy or its equivalent by the appropriate governmental
authority, and (ii) Tenant's Architect has certified that the Tenant
Improvements have been completed in accordance with the Tenant Improvement Plans
and Specifications. Installation of (i) Tenant's data and phone cabling, (ii)
Tenant's furniture, or (iii) the exterior landscaping shall not be required in
order to deem the Tenant Improvements Substantially Complete.
C. Pricing: Within ten (10) days after completion of the Tenant
Improvements Plans and Specifications, Landlord shall cause the General
Contractor to submit to Tenant competitive bids from at least three (3)
subcontractors for each aspect of the work in excess of Fifty Thousand and
No/100 Dollars ($50,000.00) related to the Tenant Improvements specified on the
Tenant Improvements Plans and Specifications. Landlord shall cause the General
Contractor to utilize the low bid in each case unless Tenant approves General
Contractor's use of another subcontractor. The cost of the Tenant Improvements
shall be based upon construction expenses equal to (i) the bid amounts as
approved by Tenant, (ii) a five percent (5%) contingency to protect the General
Contractor against cost overruns, and (iii) the general contractor fee specified
in Section 5.I. below ("Tenant Improvement Budget"). Upon Tenant's written
approval of the Tenant Improvement Budget, which approval shall not be
unreasonably withheld or delayed, Landlord and Tenant shall be deemed to have
given their respective approvals of the final Tenant Improvement Plans and
Specifications on which the cost estimate was made, and the General Contractor
shall proceed with the construction of the Tenant Improvements in accordance
with the terms of this Section 5. If Tenant does not specifically approve or
disapprove the bids within seven (7) days of submittal to Tenant, Tenant shall
be deemed to have approved the bids.
D. Change Orders: Other than changes in the Building Core Improvements,
Tenant shall have the right to order changes in the manner and type of
construction of the Tenant Improvements. Upon request and prior to Tenant's
submitting any binding change order, Landlord shall cause the General Contractor
to promptly provide Tenant with written statements of the cost to implement and
the time delay and increased construction costs associated with any proposed
change order, which statements shall be binding on General Contractor. If no
time delay or increased construction cost amount is noted on the written
statement, the parties agree that there shall be no adjustment to the
construction cost or the Commencement Date associated with such change order. If
ordered by Tenant, Landlord shall cause the General Contractor to implement such
change order and the cost of constructing the Tenant Improvements shall be
increased or decreased in accordance with the cost statement previously
delivered by General Contractor to Tenant for any such change order.
Notwithstanding the foregoing, Tenant not be liable for time delays or
construction cost increases associated with change orders under this Section
5.D. which are the result of errors on the part of Landlord or General
Contractor.
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E. Building Shell Costs: Landlord shall pay all costs and expenses
associated with construction of the Building Shell. The Building Shell
Definition shall be the governing document in specifying the costs associated
with the Building Shell.
F. Tenant Improvement Costs: Within thirty (30) days of the Lease
Commencement Date, Landlord shall reimburse Tenant up to Eighty Seven Thousand
Five Hundred Dollars ($87,500.00) towards Tenant Improvement costs associated
with: (i) exterior upgrades related to the cafeteria; and (ii) covered walkways
connecting the Buildings. Other than the foregoing, Tenant shall pay all costs
associated with the Tenant Improvements (which includes Building Core
Improvements) including, but not limited to: construction costs, all permit
fees, all fees associated with Tenant's Architect, engineers and consultants,
construction taxes or other costs imposed by governmental authorities related to
the Tenant Improvements, and the General Contractor overhead as described in
Section 5.I. below. During the course of construction of the Tenant
Improvements, Landlord shall cause the General Contractor to deliver to Tenant
not more than once each calendar month a written request for payment ("Progress
Invoice") which shall include and be accompanied by General Contractor's
certified statements setting forth the amount requested, certifying the
percentage of completion of each item for which reimbursement is requested.
Tenant shall have a right of reasonable review and approval of the Progress
Invoice, including the right to review all applicable backup documentation.
Tenant shall pay directly to the General Contractor the amount due pursuant to
the Progress Invoice, within fifteen (15) business days after Tenant's receipt
of the above items. All costs for Tenant Improvements shall be fully documented
to Tenant and subject to verification by Tenant.
G. Letter of Credit to Secure Tenant Improvement Construction: On or
before the date Landlord commences construction of the Building Shell, Tenant
shall deposit with Landlord a letter of credit ("Construction Letter of Credit")
substantially in the form attached hereto as Exhibit "C" in an initial amount of
-----------
Three Million Five Hundred Thousand Dollars ($3,500,000.00), which amount shall
be increased upon commencement of construction of Tenant Improvements by an
additional Three Million Five Hundred Thousand Dollars ($3,500,000.00) (less any
amounts already paid by that date by Tenant to General Contractor for Tenant
Improvements), to secure Tenant's obligation to complete Tenant Improvements
pursuant to this Lease. The Construction Letter of Credit shall thereafter be
reduced upon presentation to Landlord no more than once every sixty (60) days of
evidence reasonably satisfactory to Landlord that a percentage of the Tenant
Improvements equal to the requested reduction has been satisfactorily completed
and paid for including partial lien waivers and architects' certificates. Upon
Landlord's receipt of reasonably satisfactory evidence that the Tenant
Improvements have been completed free of liens and that Tenant has fully paid
for the cost of all of Tenant Improvements, the Construction Letter of Credit
shall be cancelled and returned to Tenant by Landlord. Landlord shall be
entitled to draw against the full amount of the Construction Letter of Credit at
any time provided only that Landlord certifies to the issuer of the Construction
Letter of Credit that Tenant has failed to make a payment for Tenant Improvement
costs as provided in 5.F, that Tenant has failed to timely renew or extend the
Construction Letter of Credit as required by this paragraph, or that Tenant has
failed to amend the Construction Letter of Credit or obtain a new Construction
Letter of Credit as required by this paragraph. Tenant shall keep the
Construction Letter of Credit in effect at all times prior to payment in full
for the Tenant Improvements. At least sixty (60) days prior to expiration of any
Construction Letter of Credit, the term thereof shall be renewed or extended for
a period that extends until Tenant has paid in full for the Tenant Improvements.
Tenant's failure to so renew or extend the Construction Letter of Credit shall
be a material default of this Lease by Tenant entitling Landlord to draw down on
the entire amount of the Construction Letter of Credit. Any amounts drawn on the
Construction Letter of Credit shall be used to pay for the cost of the Tenant
Improvements. In the event the
Page 7
Construction Letter of Credit is drawn by Landlord, and the proceeds used to pay
for the completion of the Tenant Improvements, then promptly following
Landlord's completion of the Tenant Improvements Landlord shall refund to Tenant
any excess proceeds from the Construction Letter of Credit. In the event of
termination of Landlord's interest in this Lease, Landlord may deliver the
Construction Letter of Credit and/or the unused proceeds of any draw against the
Construction Letter of Credit to Landlord's successor in interest in the
Premises and thereupon be relieved of further responsibility with respect to the
Construction Letter of Credit.
H. Force Majeure: Any prevention, delay or stoppage due to strikes,
lockouts, inclement weather, labor disputes, inability to obtain labor,
materials, fuel or reasonable substitutes therefor, governmental restrictions,
regulations, controls, civil commotion, fire or other act of God, and another
causes beyond the reasonable control of Landlord (except financial inability),
each a "Force Majeure Delay", shall extend the dates contained in Section 4 and
this Section 5 by a period equal to the period of any said prevention, delay or
stoppage. If Landlord cannot obtain building permits or Substantially Complete
construction by the dates set forth herein, this Lease shall not be void or
voidable nor shall Landlord be liable for any loss or damage resulting
therefrom.
I. General Contractor Overhead & Profit: As compensation to General
Contractor for its services related to construction of the Tenant Improvements,
General Contractor shall receive a fee of seven percent (7%) of the cost of
construction to cover all of the following: construction supervision and
administration, temporary on-site facilities, home office administration,
supervision, and coordination and construction profit. Except as provided
therein, Landlord or General Contractor shall not receive any other fee or
payment from Tenant in connection with General Contractor's services.
J. Tenant Delays: A "Tenant Delay" shall mean any delay in Substantial
Completion of the Building as a result of any of the following: (i) Tenant's
failure to complete or approve the Tenant Improvement Plans by November 30,
2000; (ii) Tenant's failure to approve the bids for construction by the dates
set forth in Section 5.C, (iii) changes to the plans requested by Tenant which
delay the progress of the work, unless such changes are a result of Landlord or
General Contractor error, (iv) Tenant's request for materials components, or
finishes which are not available in a commercially reasonable time given the
target Commencement Date, provided Tenant is made aware of such unavailability,
(v) Tenant's failure to make a progress payment for Tenant Improvement costs as
provided in Section 5.F, (vi) Tenant's request for more than one (1) rebidding
of the cost of all or a portion of the work, and (vii) any errors or omissions
in the Tenant Improvement Plans provided by Tenant's architect. Notwithstanding
anything to the contrary set forth in this Lease, and regardless of the actual
date the Premises are Substantially Complete, the Commencement Date shall be
deemed to be the date the Commencement Date would have occurred if no Tenant
Delay had occurred as reasonably determined by Landlord. In addition, if a
Tenant Delay results in an increase in the cost of the labor or materials,
Tenant shall pay the cost of such increases.
K. Insurance: Landlord shall cause the General Contractor to procure (as a
cost of the Building Shell) a "Broad Form" liability insurance policy in the
amount of Three Million Dollars ($3,000,000.00). Landlord shall also procure (as
a cost of the Building Shell) builder's risk insurance for the full replacement
cost of the Building Shell and Tenant Improvements while the Building Shell and
Tenant Improvements are under construction, up until the date that the casualty
insurance policy described in Section 9 is in full force and effect.
L. Punch List & Warranty: After the Building Shell and Tenant Improvements
are Substantially Complete, Landlord shall cause the General Contractor to
immediately correct any construction defect or other "punch list" item which
Tenant brings to General Contractor's attention. All such work shall be
performed so as to reasonably minimize the interruption to Tenant and its
activities on the Premises. Landlord and
Page 8
General Contractor shall provide a standard contractor's warranty with respect
to the Building Shell and the Tenant Improvements for one (1) year from the
Commencement Date. Such warranty shall exclude routine maintenance, damage
caused by Tenant's negligence or misuse, and acts of God.
M. Other Work by Tenant: All work not described in the Shell Plans and
Specifications or Tenant Improvement Plans and Specifications, such as
furniture, telephone equipment, telephone wiring and office equipment work,
shall be furnished and installed by Tenant at Tenant's cost. Prior to
Substantial Completion, Tenant shall be obligated to (i) providing active phone
lines to any elevators, and (ii) contract with a firm to monitor the fire
system. When the construction of the Tenant Improvements has proceeded to the
point where Tenant's work of installing its fixtures and equipment in the
Premises can be commenced, General Contractor shall notify Tenant and shall
permit Tenant and its authorized representatives and contractors access to the
Premises before the Commencement Date (and without any obligation to pay Base
Monthly Rent and other expenses associated with the Lease) for the purpose of
installing Tenant's trade fixtures and equipment. Any such installation work by
Tenant or its authorized representatives and contractor shall be undertaken upon
the following conditions: (i) the entry into the Premises by Tenant or its
representatives or contractors shall not interfere with or delay General
Contractor's work, and (ii) any contractor used by Tenant in connection with
such entry and installation shall use union labor.
N. Landlord's Failure to Complete Construction: If the Building is not
Substantially Complete in accordance with the Building Shell Plans and
Specifications and Tenant Improvements Plans and Specifications by November 30,
2001, then Tenant, upon written notice to Landlord, shall be entitled to
complete construction of the Building and offset the cost of construction for
which Landlord is responsible under this Lease, plus interest at the Agreed
Interest Rate, against Tenant's obligation for the initial Base Monthly Rent due
under this Lease. The completion by Tenant of Landlord's construction
obligations as provided in this Section 5.N. shall be the sole and exclusive
remedy of Tenant with respect to the failure by Landlord to achieve Substantial
Completion of the Building by November 30, 2001. In the event that Tenant shall
be required to complete Landlord's Work, Landlord agrees to promptly assign to
Tenant upon demand all plans and specifications relating to construction for
which Landlord is responsible under this Lease in order to effectuate the
completion thereof, and to cooperate with Tenant in connection with the
completion of such work. Nothing herein shall diminish Landlord's obligation to
act in good faith to promptly commence and diligently prosecute the Landlord's
Work.
The foregoing notwithstanding, the November 30, 2001 date shall be extended one
day for every day of Force Majeure Delay or Tenant Delay as defined in Sections
5.H and 5.J above.
6. ACCEPTANCE OF POSSESSION AND COVENANTS TO SURRENDER:
A. Delivery and Acceptance: On the Commencement Date, Landlord shall
deliver and Tenant shall accept possession of the Premises and enter into
occupancy of the Premises on the Commencement Date. Tenant acknowledges that it
has had an opportunity to conduct, and has conducted, such inspections of the
Premises as it deems necessary to evaluate its condition. Except as otherwise
specifically provided herein, Tenant agrees to accept possession of the Premises
in its then existing condition, subject to all Restrictions and without
representation or warranty by Landlord except as provided in Section 5.L. above.
Tenant's taking possession of any part of the Premises shall be deemed to be an
acceptance of any work of improvement done by Landlord in such part as complete
and in accordance with the terms of this Lease except for "Punch List" type
items of which Tenant has given Landlord written notice prior to the time Tenant
takes possession. At the time Landlord delivers possession of the Premises to
Tenant, Landlord and Tenant shall together execute an acceptance agreement.
Landlord shall have no obligation to deliver possession, nor shall Tenant be
entitled to take
Page 9
occupancy, of the Premises until such acceptance agreement has been executed,
and Tenant's obligation to pay Base Monthly Rent and Additional Rent shall not
be excused or delayed because of Tenant's failure to execute such acceptance
agreement. Within one hundred fifty (150) days after the Commencement Date,
Tenant agrees that it or its subtenant(s) will be in occupancy of at least fifty
percent (50%) of the rentable square footage of the Premises.
B. Condition Upon Surrender: Tenant further agrees on the Expiration Date
or on the sooner termination of this Lease, to surrender the Premises to
Landlord in good condition and repair, normal wear and tear excepted. In this
regard, "normal wear and tear" shall be construed to mean wear and tear caused
to the Premises by the natural aging process which occurs in spite of prudent
application of the best standards for maintenance, repair replacement, and
janitorial practices, and does not include items of neglected or deferred
maintenance. In any event, Tenant shall cause the following to be done prior to
the Expiration Date or sooner termination of this Lease: (i) all interior walls
shall be painted or cleaned so that they appear freshly painted, (ii) all tiled
floors shall be cleaned and waxed, (iii) all carpets shall be cleaned and
shampooed, (iv) all broken, marred, stained or nonconforming acoustical ceiling
tiles shall be replaced, (v) all cabling placed above the ceiling by Tenant or
Tenant's contractors shall be removed, (vi) all windows shall be washed; (vii)
the HVAC system shall be serviced by a reputable and licensed service firm and
left in "good operating condition and repair" as so certified by such firm,
(viii) the plumbing and electrical systems and lighting shall be placed in good
order and repair (including replacement of any burned out, discolored or broken
light bulbs, ballasts, or lenses. On or before the Expiration Date or sooner
termination of this Lease, Tenant shall remove all its personal property and
trade fixtures from the Premises. All property and fixtures not so removed shall
be deemed as abandoned by Tenant. At the expiration of the Lease Term, Landlord
shall not have the right to require that Tenant remove from the Premises any
Alterations made with Landlord's consent unless Landlord, at the time of
granting such consent, indicates that the subject Alteration must be removed
upon the expiration of the Lease Term. With respect to Permitted Alterations as
defined in Section 7A. below, Tenant shall ascertain from Landlord within ninety
(90) days before the Expiration Date whether Landlord desires to have such
Permitted Alterations removed. Tenant shall repair any damage to the Building
which results from Tenant's removal of any Alteration or removal of any
improvements and/or Tenant's equipment, fixtures, and components. Such repair
and restoration shall include causing the Premises to be brought into compliance
with all applicable building codes and laws in effect at the time of the removal
to the extent such compliance is necessitated by the repair and restoration
work.
C. Failure to Surrender: If the Premises are not surrendered at the
Expiration Date or sooner termination of this Lease in the condition required by
this Section 6, Tenant shall be deemed in a holdover tenancy pursuant to this
Section 6.C and Tenant shall indemnify, defend, and hold Landlord harmless
against loss or liability resulting from delay by Tenant in so surrendering the
Premises including, without limitation, any claims made by any succeeding tenant
founded on such delay and costs incurred by Landlord in returning the Premises
to the required condition, plus interest at the Agreed Interest Rate. Any
holding over after the termination or Expiration Date with Landlord's express
written consent, shall be construed as month-to-month tenancy, terminable on
thirty (30) days written notice from either party, and Tenant shall pay as Base
Monthly Rent to Landlord a rate equal to one hundred twenty five percent (125%)
of the Base Monthly Rent due in the month preceding the termination or
Expiration Date, plus all other amounts payable by Tenant under this Lease. Any
holding over shall otherwise be on the terms and conditions herein specified,
except those provisions relating to the Lease Term and any options to extend or
renew, which provisions shall be of no further force and effect following the
expiration of the applicable exercise period. If Tenant remains in possession of
the Premises after the Expiration Date or sooner termination of this Lease
without Landlord's consent, Tenant's continued
Page 10
possession shall be on the basis of a tenancy at sufferance and Tenant shall pay
as rent during the holdover period an amount equal to one hundred fifty percent
(150%) of the Base Monthly Rent due in the month preceding the termination or
Expiration Date, plus all other amounts payable by Tenant under this Lease. This
provision shall survive the termination or expiration of the Lease.
7. ALTERATIONS AND ADDITIONS:
A. Tenant's Alterations: Tenant shall not make, or suffer to be made, any
alteration or addition to the Premises ("Alterations"), or any part thereof,
without obtaining Landlord's prior written consent and delivering to Landlord
the proposed architectural and structural plans for all such Alterations at
least fifteen (15) days prior to the start of construction. If such Alterations
affect the structure of the Building, Tenant additionally agrees to reimburse
Landlord its reasonable out-of-pocket costs incurred in reviewing Tenant's
plans. After obtaining Landlord's consent, which consent shall state whether or
not Landlord will require Tenant to remove such Alteration at the expiration or
earlier termination of this Lease, Tenant shall not proceed to make such
Alterations until Tenant has obtained all required governmental approvals and
permits, and provides Landlord reasonable security, in form reasonably approved
by Landlord, to protect Landlord against mechanics' lien claims. Tenant agrees
to provide Landlord (i) written notice of the anticipated and actual start-date
of the work, (ii) a complete set of half-size (15" X 21") vellum as-built
drawings, and (iii) a certificate of occupancy for the work upon completion of
the Alterations. All Alterations shall be constructed in compliance with all
applicable building codes and laws including, without limitation, the Americans
with Disabilities Act of 1990 as amended from time to time. Upon the Expiration
Date, all Alterations, except movable furniture and trade fixtures, shall become
a part of the realty and belong to Landlord but shall nevertheless be subject to
removal by Tenant as provided in Section 6 above. Alterations which are not
deemed as trade fixtures include heating, lighting, electrical systems, air
conditioning, walls, carpeting, or any other installation which has become an
integral part of the Premises. All Alterations shall be maintained, replaced or
repaired by Tenant at its sole cost and expense. Notwithstanding the foregoing,
Tenant shall be entitled, without obtaining Landlord's consent, to make
Alterations which do not affect the structure of the Building and which do not
cost more than Fifty Thousand Dollars ($50,000.00) per Alteration ("Permitted
Alterations"); provided, however, that Tenant shall still be required to comply
with all other provisions of this paragraph, and such Permitted Alterations are
subject to removal by Tenant at Landlord's election pursuant to Section 6.B.
above at the expiration or earlier termination of the Lease.
B. Free From Liens: Tenant shall keep the Premises free from all liens
arising out of work performed, materials furnished, or obligations incurred by
Tenant or claimed to have been performed for Tenant. In the event Tenant fails
to discharge any such lien within ten (10) days after receiving notice of the
filing, Landlord shall be entitled to discharge the lien at Tenant's expense and
all resulting costs incurred by Landlord, including attorney's fees shall be due
from Tenant as additional rent.
C. Compliance With Governmental Regulations: The term Laws or Governmental
Regulations shall include all federal, state, county, city or governmental
agency laws, statutes, ordinances, standards, rules, requirements, or orders now
in force or hereafter enacted, promulgated, or issued. The term also includes
government measures regulating or enforcing public access, traffic mitigation,
occupational, health, or safety standards for employers, employees, landlords,
or tenants. Tenant, at Tenant's sole expense shall make all repairs,
replacements, alterations, or improvements needed to comply with all
Governmental Regulations. The judgment of any court of competent jurisdiction or
the admission of Tenant in any action or proceeding against Tenant (whether
Landlord be a party thereto or not) that Tenant has violated any such law,
regulation or other requirement in its use of the Premises shall be conclusive
of that fact as between Landlord and Tenant.
Page 11
8. MAINTENANCE OF PREMISES:
A. Landlord's Obligations: Landlord at its sole cost and expense, shall
maintain in good condition, order, and repair, and replace as and when
necessary, the foundation, exterior load bearing walls and roof structure of the
Building Shell.
B. Tenant's Obligations: Tenant shall clean, maintain, repair and replace
when necessary the Premises and every part thereof through regular inspections
and servicing, including but not limited to: (i) all plumbing and sewage
facilities, (ii) all heating ventilating and air conditioning facilities and
equipment, (iii) all fixtures, interior walls floors, carpets and ceilings, (iv)
all windows, door entrances, plate glass and glazing systems including caulking,
and skylights, (v) all electrical facilities and equipment, (vi) all automatic
fire extinguisher equipment, (vii) the parking lot and all underground utility
facilities servicing the Premises, (viii) all elevator equipment, (ix) the roof
membrane system, and (x) all waterscape, landscaping and shrubbery. All wall
surfaces and floor tile are to be maintained in an as good a condition as when
Tenant took possession free of holes, gouges, or defacements. With respect to
items (ii), (viii) and (ix) above, Tenant shall provide Landlord a copy of a
service contract between Tenant and a licensed service contractor providing for
periodic maintenance of all such systems or equipment in conformance with the
manufacturer's recommendations. Tenant shall provide Landlord a copy of such
preventive maintenance contracts and paid invoices for the recommended work if
requested by Landlord.
C. Landlord and Tenant's Obligations Regarding Reimbursable Operating
Costs: In addition to the direct payment by Tenant of expenses as provided in
Sections 8.B, 9, 10 and 11 of this Lease, Tenant agrees to reimburse Landlord
for Tenant's Allocable Share (as defined in Section 8.E below) of Reimbursable
Operating Costs (as defined in Section 8.D below) resulting from Landlord
payment of expenses related to the ownership and operation of the Building or
Project which are not otherwise paid by Tenant directly. Tenant agrees to pay
its Allocable Share of the Reimbursable Operating Costs as additional rental
within thirty (30) days of written invoice from Landlord.
D. Reimbursable Operating Costs: For purposes of calculating Tenant's
Allocable Share of Building and Project Costs, the term "Reimbursable Operating
Costs" is defined as all costs and expenses of the nature hereinafter described
which are incurred by Landlord in connection with ownership and operation of the
Building or the Project in which the Premises are located, together with such
additional facilities as may be determined by Landlord to be reasonably
desirable or necessary to the ownership and operation of the Building and/or
Project. All costs and expenses shall be determined in accordance with generally
accepted accounting principles which shall be consistently applied (with
accruals appropriate to Landlord's business), including but not limited to the
following: (i) common area utilities, including water, power, telephone,
heating, lighting, air conditioning, ventilating, and Building utilities to the
extent not separately metered; (ii) common area maintenance and service
agreements for the Building and/or Project and the equipment therein, including
without limitation, common area janitorial services, alarm and security
services, exterior window cleaning, and maintenance of the sidewalks,
landscaping, waterscape, roof membrane, parking areas, driveways, service areas,
mechanical rooms, elevators, and the building exterior; (iii) insurance premiums
and costs, including without limitation, the premiums and cost of fire, casualty
and liability coverage and rental abatement and, if elected by Landlord,
earthquake insurance applicable to the Building or Project; (iv) repairs,
replacements and general maintenance (excluding repairs and general maintenance
paid by proceeds of insurance or by Tenant or other third parties, and repairs
or alterations attributable solely to tenants of the Building or Project other
than Tenant); and (v) all real estate taxes and assessment installments or other
impositions or charges which may be levied on the Building or Project, upon the
occupancy of the Building or Project and including any substitute or additional
charges which may be
Page 12
imposed during, or applicable to the Lease Term including real estate tax
increases due to a sale, transfer or other change of ownership of the Building
or Project, as such taxes are levied or appear on the City and County tax bills
and assessment rolls. Landlord shall have no obligation to provide guard
services or other security measures for the benefit of the Project. Tenant
assumes all responsibility for the protection of Tenant and Tenant's Agents from
acts of third parties; provided, however, that nothing contained herein shall
prevent Landlord, at its sole option, from providing security measures for the
Project. This is a "Net" Lease, meaning that Base Monthly Rent is paid to
Landlord absolutely net of all costs and expenses. The provision for payment of
Reimbursable Operating Costs by means of periodic payment of Tenant's Allocable
Share of Building and/or Project Costs is intended to pass on to Tenant and
reimburse Landlord for all costs of operating and managing the Building and/or
Project.
E. Tenant's Allocable Share: For purposes of prorating Reimbursable
Operating Costs which Tenant shall pay, Tenant's Allocable Share of Reimbursable
Operating Costs shall be computed by multiplying the Reimbursable Operating
Costs by a fraction, the numerator of which is the rentable square footage of
the Premises and the denominator of which is either the total rentable square
footage of the Building if the service or cost is allocable only to the
Building, or the total square footage of the Project if the service or cost is
allocable to the entire Project. Tenant's obligation to share in Reimbursable
Operating Costs shall be adjusted to reflect the Lease Commencement and
Expiration dates and is subject to recalculation in the event of expansion of
the Building or Project.
F. Waiver of Liability: Failure by Landlord to perform any defined
services, or any cessation thereof, when such failure is caused by accident,
breakage, repairs, strikes, lockout or other labor disturbances or labor
disputes of any character or by any other cause, similar or dissimilar, shall
not render Landlord liable to Tenant in any respect, including damages to either
person or property, nor be construed as an eviction of Tenant, nor cause an
abatement of rent, nor relieve Tenant from fulfillment of any covenant or
agreement hereof. Should any equipment or machinery utilized in supplying the
services listed herein break down or for any cause cease to function properly,
upon receipt of written notice from Tenant of any deficiency or failure of any
services, Landlord shall use reasonable diligence to repair the same promptly,
but Tenant shall have no right to terminate this Lease and shall have no claim
for rebate of rent or damages on account of any interruptions in service
occasioned thereby or resulting therefrom. Tenant waives the provisions of
California Civil Code Sections 1941 and 1942 concerning the Landlord's
obligation of tenantability and Tenant's right to make repairs and deduct the
cost of such repairs from the rent. Landlord shall not be liable for a loss of
or injury to person or property, however occurring, through or in connection
with or incidental to furnishing, or its failure to furnish, any of the
foregoing, unless due to the active negligence or willful misconduct of
Landlord.
9. HAZARD INSURANCE:
A. Tenant's Use: Tenant shall not use or permit the Premises, or any part
thereof, to be used for any purpose other than that for which the Premises are
hereby leased; and no use of the Premises shall be made or permitted, nor acts
done, which will cause an increase in premiums or a cancellation of any
insurance policy covering the Premises or any part thereof, nor shall Tenant
sell or permit to be sold, kept, or used in or about the Premises, any article
prohibited by the standard form of fire insurance policies. Tenant shall, at its
sole cost, comply with all requirements of any insurance company or organization
necessary for the maintenance of reasonable fire and public liability insurance
covering the Premises and appurtenances.
B. Landlord's Insurance: Landlord agrees to purchase and keep in force
fire, extended coverage insurance in an amount equal to the replacement cost of
the Building (not including any Tenant Improvements or Alterations paid for by
Tenant from sources other than the Work Allowance) as determined by Landlord's
insurance
Page 13
company's appraisers. At Landlord's election, such fire and property damage
insurance may be endorsed to cover loss caused by such additional perils against
which Landlord may elect to insure, including earthquake and/or flood, and shall
contain reasonable deductibles. Additionally Landlord may maintain a policy of
(i) commercial general liability insurance insuring Landlord (and such others
designated by Landlord) against liability for personal injury, bodily injury,
death and damage to property occurring or resulting from an occurrence in, on or
about the Premises or Project in an amount as Landlord determines is reasonably
necessary for its protection, and (ii) rental lost insurance covering a twelve
(12) month period. Tenant agrees to pay Landlord as additional rent, on demand,
the full cost of said insurance as evidenced by insurance billings to Landlord,
and in the event of damage covered by said insurance, the amount of any
deductible under such policy. Payment shall be due to Landlord within thirty
(30) days after written invoice to Tenant. It is understood and agreed that
Tenant's obligation under this Section will be prorated to reflect the Lease
Commencement and Expiration Dates.
C. Tenant's Insurance: Tenant agrees, at its sole cost, to insure its
personal property, Tenant Improvements (for which it has paid from sources other
than the Work Allowance), and Alterations for their full replacement value
(without depreciation) and to obtain worker's compensation and public liability
and property damage insurance for occurrences within the Premises with a
combined single limit of not less than Five Million Dollars ($5,000,000.00).
Tenant's liability insurance shall be primary insurance containing a
cross-liability endorsement, and shall provide coverage on an "occurrence"
rather than on a "claims made" basis. Tenant shall name Landlord and Landlord's
lender as an additional insured and shall deliver a copy of the policies and
renewal certificates to Landlord. All such policies shall provide for thirty
(30) days' prior written notice to Landlord of any cancellation, termination, or
reduction in coverage. Notwithstanding the above, Landlord retains the right to
have Tenant provide other forms of insurance which may be reasonably required to
cover future risks.
D. Waiver: Landlord and Tenant hereby waive all rights each may have
against the other on account of any loss or damage sustained by Landlord or
Tenant, as the case may be, or to the Premises or its contents, which may arise
from any risk covered by their respective insurance policies (or which would
have been covered had such insurance policies been maintained in accordance with
this Lease) as set forth above. The Parties shall use their reasonable efforts
to obtain from their respective insurance companies a waiver of any right of
subrogation which said insurance company may have against Landlord or Tenant, as
the case may be.
10. TAXES: Tenant shall be liable for and shall pay as additional rental, prior
to delinquency, the following: (i) all taxes and assessments levied against
Tenant's personal property and trade or business fixtures; (ii) all real estate
taxes and assessment installments or other impositions or charges which may be
levied on the Premises or upon the occupancy of the Premises, including any
substitute or additional charges which may be imposed applicable to the Lease
Term; and (iii) real estate tax increases due to an increase in assessed value
resulting from a sale, transfer or other change of ownership of the Premises as
it appears on the City and County tax bills during the Lease Term. All real
estate taxes shall be prorated to reflect the Lease Commencement and Expiration
Dates. If, at any time during the Lease Term a tax, excise on rents, business
license tax or any other tax, however described, is levied or assessed against
Landlord as a substitute or addition, in whole or in part, for taxes assessed or
imposed on land or Buildings, Tenant shall pay and discharge its pro rata share
of such tax or excise on rents or other tax before it becomes delinquent; except
that this provision is not intended to cover net income taxes, inheritance, gift
or estate tax imposed upon Landlord. In the event that a tax is placed, levied,
or assessed against Landlord and the taxing authority takes the position that
Tenant cannot pay and discharge its pro rata share of such tax on behalf of
Landlord, then at Landlord's sole election, Landlord may increase the Base
Monthly Rent by the exact
Page 14
amount of such tax and Tenant shall pay such increase. If by virtue of any
application or proceeding brought by Landlord, there results a reduction in the
assessed value of the Premises during the Lease Term, Tenant agrees to pay
Landlord a fee consistent with the fees charged by a third party appeal firm for
such services.
11. UTILITIES: Tenant shall pay directly to the providing utility all water,
gas, electric, telephone, and other utilities supplied to the Premises. Landlord
shall not be liable for loss of or injury to person or property, however
occurring, through or in connection with or incidental to furnishing or the
utility company's failure to furnish utilities to the Premises, and in such
event Tenant shall not be entitled to abatement or reduction of any portion of
Base Monthly Rent or any other amount payable under this Lease. The foregoing
notwithstanding, if the Premises are not supplied with any or all of the
Utilities and such failure is due to the active negligence or willful misconduct
of Landlord, Tenant shall be entitled to an abatement of rent unless such
utility or utilities are restored within two (2) business days.
12. TOXIC WASTE AND ENVIRONMENTAL DAMAGE:
A. Tenant's Responsibility: Without the prior written consent of Landlord,
Tenant or Tenant's agents, employees, contractors and invitees ("Tenant's
Agents") shall not bring, use, or permit upon the Premises, or generate, create,
release, emit, or dispose (nor permit any of the same) from the Premises any
chemicals, toxic or hazardous gaseous, liquid or solid materials or waste,
including without limitation, material or substance having characteristics of
ignitability, corrosivity, reactivity, or toxicity or substances or materials
which are listed on any of the Environmental Protection Agency's lists of
hazardous wastes or which are identified in Division 22 Title 26 of the
California Code of Regulations as the same may be amended from time to time or
any wastes, materials or substances which are or may become regulated by or
under the authority of any applicable local, state or federal laws, judgments,
ordinances, orders, rules, regulations, codes or other governmental
restrictions, guidelines or requirements. ("Hazardous Materials") except for
those substances customary in typical office uses for which no consent shall be
required. In order to obtain consent, Tenant shall deliver to Landlord its
written proposal describing the toxic material to be brought onto the Premises,
measures to be taken for storage and disposal thereof, safety measures to be
employed to prevent pollution of the air, ground, surface and ground water.
Landlord's approval may be withheld in its reasonable judgment. In the event
Landlord consents to Tenant's use of Hazardous Materials on the Premises or such
consent is not required, Tenant represents and warrants that it shall comply
with all Governmental Regulations applicable to Hazardous Materials including
doing the following: (i) adhere to all reporting and inspection requirements
imposed by Federal, State, County or Municipal laws, ordinances or regulations
and will provide Landlord a copy of any such reports or agency inspections; (ii)
obtain and provide Landlord copies of all necessary permits required for the use
and handling of Hazardous Materials on the Premises; (iii) enforce Hazardous
Materials handling and disposal practices consistent with industry standards;
(iv) surrender the Premises free from any Hazardous Materials arising from
Tenant's bringing, using, permitting, generating, creating, releasing, emitting
or disposing of Hazardous Materials; and (v) properly close the facility with
regard to Hazardous Materials including the removal or decontamination of any
process piping, mechanical ducting, storage tanks, containers, or trenches which
have come into contact with Hazardous Materials and obtain a closure certificate
from the local administering agency prior to the Expiration Date.
B. Tenant's Indemnity Regarding Hazardous Materials: Tenant shall, at its
sole cost and expense, comply with all laws pertaining to, and shall with
counsel reasonably acceptable to Landlord, indemnify, defend and hold harmless
Landlord and Landlord's trustees, shareholders, directors, officers, employees,
partners, affiliates, and agents from, any claims, liabilities, costs or
expenses incurred or suffered arising from the
Page 15
bringing, using, permitting, generating, emitting or disposing of Hazardous
Materials by Tenant or Tenant's Agents, employees or invitees through the
surface soils of the Premises during the Lease Term or the violation of any
Governmental Regulation or environmental law, by Tenant or Tenant's Agents.
Tenant's indemnification, defense, and hold harmless obligations include,
without limitation, the following: (i) claims, liability, costs or expenses
resulting from or based upon administrative, judicial (civil or criminal) or
other action, legal or equitable, brought by any private or public person under
common law or under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 as amended ("CERCLA"), the Resource Conservation and
Recovery Act of 1980 ("RCRA") or any other Federal, State, County or Municipal
law, ordinance or regulation now or hereafter in effect; (ii) claims,
liabilities, costs or expenses pertaining to the identification, monitoring,
cleanup, containment, or removal of Hazardous Materials from soils, riverbeds or
aquifers including the provision of an alternative public drinking water source;
(iii) all costs of defending such claims; (iv) losses attributable to diminution
in the value of the Premises or the Building; (v) loss or restriction of use of
rentable space in the Building; (vi) Adverse effect on the marketing of any
space in the Building; and (vi) all other liabilities, obligations, penalties,
fines, claims, actions (including remedial or enforcement actions of any kind
and administrative or judicial proceedings, orders or judgments), damages
(including consequential and punitive damages), and costs (including attorney,
consultant, and expert fees and expenses) resulting from the release or
violation. This Section 12.B shall survive the expiration or termination of this
Lease.
Landlord shall indemnify, defend and hold Tenant harmless from losses arising
from Hazardous Materials on, in or under the Premises: (i) prior to the
Commencement Date; or (ii) as a result of Landlord action after the Commencement
Date. In no event, however, shall Landlord be liable for any consequential
damages suffered or incurred by Tenant as a result of any such presence of
Hazardous Materials.
C. Actual Release by Tenant: Tenant agrees to notify Landlord of any
lawsuits or orders which relate to the remedying of or actual release of
Hazardous Materials on or into the soils or ground water at or under the
Premises. Tenant shall also provide Landlord all notices required by Section
25359.7(b) of the Health and Safety Code and all other notices required by law
to be given to Landlord in connection with Hazardous Materials. Without limiting
the foregoing, Tenant shall also deliver to Landlord, within twenty (20) days
after receipt thereof, any written notices from any governmental agency alleging
a material violation of, or material failure to comply with, any federal, state
or local laws, regulations, ordinances or orders, the violation of which or
failure to comply with poses a foreseeable and material risk of contamination of
the ground water or injury to humans (other than injury solely to Tenant or
Tenant's Agents).
In the event of any release on or into the Premises or into the soil or
ground water under the Premises, the Building or the Project of any Hazardous
Materials used, treated, stored or disposed of by Tenant or Tenant's Agents,
Tenant agrees to comply, at its sole cost, with all laws, regulations,
ordinances and orders of any federal, state or local agency relating to the
monitoring or remediation of such Hazardous Materials. In the event of any such
release of Hazardous Materials Tenant shall immediately give verbal and follow-
up written notice of the release to Landlord, and Tenant agrees to meet and
confer with Landlord and its Lender to attempt to eliminate and mitigate any
financial exposure to such Lender and resultant exposure to Landlord under
California Code of Civil Procedure Section 736(b) as a result of such release,
and promptly to take reasonable monitoring, cleanup and remedial steps given,
inter alia, the historical uses to which the Property has and continues to be
used, the risks to public health posed by the release, the then available
technology and the costs of remediation, cleanup and monitoring, consistent with
acceptable customary practices for the type and severity of such contamination
and all applicable laws. Nothing in the preceding sentence shall eliminate,
modify or reduce the obligation of Tenant under 12.B of this Lease to indemnify,
defend and hold
Page 16
Landlord harmless from any claims liabilities, costs or expenses incurred or
suffered by Landlord. Tenant shall provide Landlord prompt written notice of
Tenant's monitoring, cleanup and remedial steps.
In the absence of an order of any federal, state or local governmental or
quasi-governmental agency relating to the cleanup, remediation or other response
action required by applicable law, any dispute arising between Landlord and
Tenant concerning Tenant's obligation to Landlord under this Section 12.C
concerning the level, method, and manner of cleanup, remediation or response
action required in connection with such a release of Hazardous Materials shall
be resolved by mediation and/or arbitration pursuant to this Lease.
D. Environmental Monitoring: Landlord and its agents shall have the right
to inspect, investigate, sample and monitor the Premises including any air,
soil, water, ground water or other sampling or any other testing, digging,
drilling or analysis to determine whether Tenant is complying with the terms of
this Section 12. If Landlord discovers that Tenant is not in compliance with the
terms of this Section 12, any such costs incurred by Landlord, including
attorneys' and consultants' fees, shall be due and payable by Tenant to Landlord
within five (5) days following Landlord's written demand therefore.
13. TENANT'S DEFAULT: The occurrence of any of the following shall constitute a
material default and breach of this Lease by Tenant: (i) Tenant's failure to pay
the Base Monthly Rent including additional rent or any other payment due under
this Lease, where such failure continues for ten (10) days beyond Tenant's
receipt of written notice from Landlord that such amount is due, (ii) the
abandonment or vacation of the Premises by Tenant; (iii) Tenant's failure to
observe and perform any other required provision of this Lease, where such
failure continues for thirty (30) days after written notice from Landlord,
provided that if the nature of the default is such that it cannot reasonably be
cured within the 30-day period, Tenant shall not be deemed in default if it
commences within such period to cure, and thereafter diligently prosecutes the
same to completion; (iv) Tenant's making of any general assignment for the
benefit of creditors; (v) the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or of a petition for reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of a petition filed
against Tenant, the same is dismissed after the filing); (vi) the appointment of
a trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within thirty (30) days; or (vii) the attachment,
execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where such
seizure is not discharged within thirty (30) days.
A. Remedies: In the event of any such default by Tenant, then in addition
to other remedies available to Landlord at law or in equity, Landlord shall have
the immediate option to terminate this Lease and all rights of Tenant hereunder
by giving written notice of such intention to terminate. In the event Landlord
elects to so terminate this Lease, Landlord may recover from Tenant all the
following: (i) the worth at time of award of any unpaid rent which had been
earned at the time of such termination; (ii) the worth at time of award of the
amount by which the unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss for the same
period that Tenant proves could have been reasonably avoided; (iii) the worth at
time of award of the amount by which the unpaid rent for the balance of the
Lease Term after the time of award exceeds the amount of such rental loss that
Tenant proves could be reasonably avoided; (iv) any other amount necessary to
compensate Landlord for all detriment proximately caused by Tenant's failure to
perform its obligations under this Lease, or which in the ordinary course of
things would be likely to result therefrom; including the following: (x)
expenses for repairing, altering or remodeling the Premises for purposes of
reletting, (y) broker's fees, advertising costs or other expenses of reletting
the Premises, and (z) costs of carrying the Premises such as
Page 17
taxes, insurance premiums, utilities and security precautions; and (v) at
Landlord's election, such other amounts in addition to or in lieu of the
foregoing as may be permitted by applicable California law. The term "rent", as
used herein, is defined as the minimum monthly installments of Base Monthly Rent
and all other sums required to be paid by Tenant pursuant to this Lease, all
such other sums being deemed as additional rent due hereunder. As used in (i)
and (ii) above, "worth at the time of award" shall be computed by allowing
interest at a rate equal to the discount rate of the Federal Reserve Bank of San
Francisco plus five (5%) percent per annum. As used in (iii) above, "worth at
the time of award" shall be computed by discounting such amount at the discount
rate of the Federal Reserve Bank of San Francisco at the time of award plus one
(1%) percent.
B. Right to Re-enter: In the event of any such default by Tenant, Landlord
shall have the right, after terminating this Lease, to re-enter the Premises and
remove all persons and property. Such property may be removed and stored in a
public warehouse or elsewhere at the cost of and for the account of Tenant, and
disposed of by Landlord in any manner permitted by law.
C. Abandonment: If Landlord does not elect to terminate this Lease as
provided in Section 13.A or 13.B above, then the provisions of California Civil
Code Section 1951.4, (Landlord may continue the lease in effect after Tenant's
breach and abandonment and recover rent as it becomes due if Tenant has a right
to sublet and assign, subject only to reasonable limitations) as amended from
time to time, shall apply and Landlord may from time to time, without
terminating this Lease, either recover all rental as it becomes due or relet the
Premises or any part thereof for such term or terms and at such rental or
rentals and upon such other terms and conditions as Landlord in its sole
discretion may deem advisable, with the right to make alterations and repairs to
the Premises. In the event that Landlord elects to so relet, rentals received by
Landlord from such reletting shall be applied in the following order to: (i) the
payment of any indebtedness other than Base Monthly Rent due hereunder from
Tenant to Landlord; (ii) the payment of any cost of such reletting; (iii) the
payment of the cost of any alterations and repairs to the Premises; and (iv) the
payment of Base Monthly Rent due and unpaid hereunder. The residual rentals, if
any, shall be held by Landlord and applied in payment of future Base Monthly
Rent as the same may become due and payable hereunder. Landlord shall the
obligation to market the space but shall have no obligation to relet the
Premises following a default if Landlord has other comparable available space
within the Building or Project. In the event the portion of rentals received
from such reletting which is applied to the payment of rent hereunder during any
month be less than the rent payable during that month by Tenant hereunder, then
Tenant shall pay such deficiency to Landlord immediately upon demand. Such
deficiency shall be calculated and paid monthly. Tenant shall also pay to
Landlord, as soon as ascertained, any costs and expenses incurred by Landlord in
such reletting or in making such alterations and repairs not covered by the
rentals received from such reletting.
D. No Termination: Landlord's re-entry or taking possession of the Premises
pursuant to 13.B or 13.C shall not be construed as an election to terminate this
Lease unless written notice of such intention is given to Tenant or unless the
termination is decreed by a court of competent jurisdiction. Notwithstanding any
reletting without termination by Landlord because of any default by Tenant,
Landlord may at any time after such reletting elect to terminate this Lease for
any such default.
E. Non-Waiver: Landlord may accept Tenant's payments without waiving any
rights under this Lease, including rights under a previously served notice of
default. No payment by Tenant or receipt by Landlord of a lesser amount than any
installment of rent due shall be deemed as other than payment on account of the
amount due. If Landlord accepts payments after serving a notice of default,
Landlord may nevertheless commence and pursue an action to enforce rights and
remedies under the previously served notice of default without giving Tenant any
further notice or demand. Furthermore, the Landlord's acceptance of rent from
the Tenant
Page 18
when the Tenant is holding over without express written consent does not convert
Tenant's Tenancy from a tenancy at sufferance to a month to month tenancy. No
waiver of any provision of this Lease shall be implied by any failure of
Landlord to enforce any remedy for the violation of that provision, even if that
violation continues or is repeated. Any waiver by Landlord of any provision of
this Lease must be in writing. Such waiver shall affect only the provision
specified and only for the time and in the manner stated in the writing. No
delay or omission in the exercise of any right or remedy by Landlord shall
impair such right or remedy or be construed as a waiver thereof by Landlord. No
act or conduct of Landlord, including, without limitation, the acceptance of
keys to the Premises, shall constitute acceptance of the surrender of the
Premises by Tenant before the Expiration Date. Only written notice from Landlord
to Tenant of acceptance shall constitute such acceptance of surrender of the
Premises. Landlord's consent to or approval of any act by Tenant which requires
Landlord's consent or approvals shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent act by Tenant.
F. Performance by Landlord: If Tenant fails to perform any obligation
required under this Lease or by law or governmental regulation, Landlord in its
sole discretion may, after ten (10) days prior written notice to Tenant, without
waiving any rights or remedies and without releasing Tenant from its obligations
hereunder, perform such obligation, in which event Tenant shall pay Landlord as
additional rent all sums paid by Landlord in connection with such substitute
performance, including interest at the Agreed Interest Rate (as defined in
Section 19.J) within ten (10) days of Landlord's written notice for such
payment.
G. Habitual Default: The provisions of Section 13 notwithstanding, the
Parties agree that if Tenant shall have defaulted in the performance of any (but
not necessarily the same) monetary term or condition of this Lease for four or
more times during any twelve (12) month period during the Lease Term, then such
conduct shall, at the election of the Landlord, represent a separate event of
default which cannot be cured by Tenant. Tenant acknowledges that the purpose of
this provision is to prevent repetitive defaults by Tenant, which work a
hardship upon Landlord and deprive Landlord of Tenant's timely performance under
this Lease.
14. LANDLORD'S LIABILITY:
A. Limitation on Landlord's Liability: In the event of Landlord's failure
to perform any of its covenants or agreements under this Lease, Tenant shall
give Landlord written notice of such failure and shall give Landlord thirty (30)
days to cure or commence to cure such failure prior to any claim for breach or
resultant damages, provided, however, that if the nature of the default is such
that it cannot reasonably be cured within the 30-day period, Landlord shall not
be deemed in default if it commences within such period to cure, and thereafter
diligently prosecutes the same to completion. In addition, upon any such failure
by Landlord, Tenant shall give notice by registered or certified mail to any
person or entity with a security interest in the Premises ("Mortgagee") that has
provided Tenant with notice of its interest in the Premises, and shall provide
Mortgagee a reasonable opportunity to cure such failure, including such time to
obtain possession of the Premises by power of sale or judicial foreclosure, if
such should prove necessary to effectuate a cure. Tenant agrees that each of the
Mortgagees to whom this Lease has been assigned is an expressed third-party
beneficiary hereof. Tenant waives any right under California Civil Code Section
1950.7 or any other present or future law to the collection of any payment or
deposit from Mortgagee or any purchaser at a foreclosure sale of Mortgagee's
interest unless Mortgagee or such purchaser shall have actually received and not
refunded the applicable payment or deposit. Tenant further waives any right to
terminate this Lease and to vacate the Premises on Landlord's default under this
Lease. Tenant's sole remedy on Landlord's default is an action for damages or
injunctive or declaratory relief.
B. Limitation on Tenant's Recourse: If Landlord is a corporation, trust,
partnership, joint
Page 19
venture, unincorporated association or other form of business entity, then (i)
the obligations of Landlord shall not constitute personal obligations of the
officers, directors, trustees, partners, joint venturers, members, owners,
stockholders, or other principals or representatives except to the extent of
their interest in the Premises. Tenant shall have recourse only to the interest
of Landlord in the Premises or for the satisfaction of the obligations of
Landlord and shall not have recourse to any other assets of Landlord for the
satisfaction of such obligations.
C. Indemnification of Landlord: As a material part of the consideration
rendered to Landlord, Tenant hereby waives all claims against Landlord for
damages to goods, wares and merchandise, and all other personal property in,
upon or about said Premises and for injuries to persons in or about said
Premises, from any cause arising at any time to the fullest extent permitted by
law, and Tenant shall indemnify, defend with counsel reasonably acceptable to
Landlord and hold Landlord, and their shareholders, directors, officers,
trustees, employees, partners, affiliates and agents from any claims,
liabilities, costs or expenses incurred or suffered arising from the use of
occupancy of the Premises or any part of the Project by Tenant or Tenant's
Agents, the acts or omissions of Tenant or Tenant's Agents, Tenant's breach of
this Lease, or any damage or injury to person or property from any cause, except
to the extent caused by the willful misconduct or active negligence of Landlord
or from the failure of Tenant to keep the Premises in good condition and repair
as herein provided, except to the extent due to the gross negligence or willful
misconduct of Landlord. Further, in the event Landlord is made party to any
litigation due to the acts or omission of Tenant and Tenant's Agents, Tenant
will indemnify, defend (with counsel reasonably acceptable to Landlord) and hold
Landlord harmless from any such claim or liability including Landlord's costs
and expenses and reasonable attorney's fees incurred in defending such claims.
15. DESTRUCTION OF PREMISES:
A. Landlord's Obligation to Restore: In the event of a destruction of the
Premises during the Lease Term Landlord shall repair the same to a similar
condition to that which existed prior to such destruction. Such destruction
shall not annul or void this Lease; however, Tenant shall be entitled to a
proportionate reduction of Base Monthly Rent while repairs are being made, such
proportionate reduction to be based upon the extent to which the repairs
interfere with Tenant's business in the Premises, as reasonably determined by
Landlord and Tenant. In no event shall Landlord be required to replace or
restore Alterations, Tenant Improvements paid for by Tenant from sources other
than the Work Allowance or Tenant's fixtures or personal property. With respect
to a destruction which Landlord is obligated to repair or may elect to repair
under the terms of this Section, Tenant waives the provisions of Section 1932,
and Section 1933, Subdivision 4, of the Civil Code of the State of California,
and any other similarly enacted statute, and the provisions of this Section 15
shall govern in the case of such destruction.
B. Limitations on Landlord's Restoration Obligation: Notwithstanding the
provisions of Section 15.A, Landlord shall have no obligation to repair, or
restore the Premises if any of the following occur: (i) if the repairs cannot be
made in one hundred eighty (180) days from the date of receipt of all
governmental approvals necessary under the laws and regulations of State,
Federal, County or Municipal authorities, as reasonably determined by Landlord,
(ii) if the holder of the first deed of trust or mortgage encumbering the
Building elects not to permit the insurance proceeds payable upon damage or
destruction to be used for such repair or restoration, (iii) the damage or
destruction is not fully covered by the insurance maintained by Landlord, (iv)
the damage or destruction occurs in the last twenty four (24) months of the
Lease Term (unless Tenant has exercised or exercises, within five (5) business
days, an option to extend the Lease Term), (v) Tenant is in default pursuant to
the provisions of Section 13, or (vi) Tenant has vacated the Premises for more
than ninety (90) days. In any such event Landlord may elect either to (i)
complete the repair or restoration, or (ii) terminate this Lease by providing
Tenant written notice of its election within sixty (60) days following the
Page 20
damage or destruction. In the event of the occurrence of (i) or (iv) above,
Tenant also shall have the right to terminate this Lease by providing Landlord
written notice of its election within sixty (60) days following the damage or
destruction.
16. CONDEMNATION: If any part of the Premises shall be taken for any public or
quasi-public use, under any statute or by right of eminent domain or private
purchase in lieu thereof, and only a part thereof remains which is susceptible
of occupation hereunder, this Lease shall, as to the part so taken, terminate as
of the day before title vests in the condemnor or purchaser ("Vesting Date") and
Base Monthly Rent payable hereunder shall be adjusted so that Tenant is required
to pay for the remainder of the Lease Term only such portion of Base Monthly
Rent as the value of the part remaining after such taking bears to the value of
the entire Premises prior to such taking. Further, in the event of such partial
taking, Landlord shall have the option to terminate this Lease as of the Vesting
Date to the part of the Premises condemned. If all of the Premises or such part
thereof be taken so that there does not remain a portion susceptible for
occupation hereunder, this Lease shall terminate on the Vesting Date. If part or
all of the Premises be taken, all compensation awarded upon such taking shall go
to Landlord, and Tenant shall have no claim thereto. Notwithstanding the
foregoing, Tenant: (i) shall be entitled to a separate award for any increased
rent Tenant becomes obligated to pay as a result of such taking for the
remainder of the Lease Term, and (ii) shall have the right to make a separate
claim in any condemnation proceeding for the taking of the unamortized or
undepreciated value of the Tenant Improvements and Alterations owned by Tenant
which Tenant may remove at the expiration or earlier termination of this Lease,
reasonable removal and relocation costs for any improvements Tenant has the
right to remove and elects to remove, relocation costs, the claim for which
Tenant may pursue by separate action independent of this Lease and any other
amount that does not reduce the amount of the award payable to Landlord. Tenant
shall have the right to negotiate directly with the condemnor for the recovery
of the portion of the award that Tenant is entitled to under subsection (ii)
above. Tenant hereby waives the provisions of California Code of Civil
Procedures Section 1265.130 and any other similarly enacted statue, and the
provisions of this Section 16 shall govern in the case of a taking.
17. ASSIGNMENT OR SUBLEASE:
A. Consent by Landlord: Except as specifically provided in Section 17.E.
below, Tenant may not assign, sublet, hypothecate, or allow a third party to use
the Premises without the express written consent of Landlord. In the event
Tenant desires to assign this Lease or any interest herein or sublet the
Premises or any part thereof, Tenant shall deliver to Landlord (i) executed
counterparts of any agreement and of all ancillary agreements with the proposed
assignee/subtenant, (ii) current financial statements of the transferee covering
the preceding three years, (iii) the nature of the proposed transferee's
business to be carried on in the Premises, (iv) a statement outlining all
consideration to be given on account of the Transfer, and (v) a current
financial statement of Tenant. Landlord may condition its approval of any
Transfer on receipt of a certification from both Tenant and the proposed
transferee of all consideration to be paid to Tenant in connection with such
Transfer. At Landlord's request, Tenant shall also provide additional
information reasonably required by Landlord to determine whether it will consent
to the proposed assignment or sublease. Landlord shall have ten (10) business
days following receipt of all the foregoing within which to notify Tenant in
writing that Landlord elects to: (i) terminate this Lease for such part of the
Premises (provided, however, that Landlord shall have no such right to terminate
for any sublease or assignment expiring more than two (2) years prior to the
Lease Expiration Date); (ii) permit Tenant to assign or sublet such space to the
named assignee/subtenant on the terms and conditions set forth in the notice; or
(iii) refuse consent. If Landlord should fail to notify Tenant in writing of
such election within the 10 business-day period, Landlord shall be deemed to
have elected option (iii) above. In the event Landlord elects option (i) above,
this Lease shall expire with respect to such part of the Premises on the date
upon which the proposed sublease or transfer was
Page 21
to commence, and from such date forward, Base Monthly Rent and Tenant's
Allocable Share of all other costs and charges shall be adjusted based upon the
proportion that the rentable area of the Premises remaining bears to the total
rentable area of the Building. In the event Landlord elects option (ii) above,
Landlord's written consent to the proposed assignment or sublease shall not be
unreasonably withheld, provided and upon the condition that: (i) the proposed
assignee or subtenant is engaged in a business that is limited to the use
expressly permitted under this Lease; (ii) the proposed assignee or subtenant is
a company with sufficient financial worth and management ability to undertake
the financial obligation of this Lease and Landlord has been furnished with
reasonable proof thereof; (iii) the proposed assignment or sublease is in form
reasonably satisfactory to Landlord; (iv) the amount of the aggregate rent to be
paid by the proposed subtenant is not less than the then current "Fair Market
Rental" as defined in Section 18.A below; (v) Tenant reimburses Landlord on
demand for any costs that may be incurred by Landlord in connection with said
assignment or sublease, including the costs of making investigations as to the
acceptability of the proposed assignee or subtenant and legal costs incurred in
connection with the granting of any requested consent; and (vi) Tenant shall not
have advertised or publicized in any way the availability of the Premises
without prior notice to Landlord. In the event all or any one of the foregoing
conditions are not satisfied, Landlord shall be considered to have acted
reasonably if it withholds its consent.
B. Assignment or Subletting Consideration: Landlord and Tenant hereby agree
that fifty percent (50%) of any rent or other economic consideration (i)
realized by Tenant under any sublease or assignment, or (ii) realized by any
subtenant under any sub-sublease of the Premises, in excess of the Base Monthly
Rent payable hereunder and reasonable subletting and assignment costs, and other
costs incurred as a direct result of the sublease or assignment, shall be paid
to Landlord. Tenant's obligation to pay over Landlord's portion of the
consideration constitutes an obligation for additional rent hereunder. The above
provisions relating to Landlord's right to terminate the Lease and relating to
the allocation of excess rent are independently negotiated terms of the Lease
which constitute a material inducement for the Landlord to enter into the Lease,
and are agreed by the Parties to be commercially reasonable. No assignment or
subletting by Tenant shall relieve it of any obligation under this Lease. Any
assignment or subletting which conflicts with the provisions hereof shall be
void.
C. No Release: Any assignment or sublease shall be made only if and shall
not be effective until the assignee or subtenant shall execute, acknowledge, and
deliver to Landlord an agreement, in form and substance satisfactory to
Landlord, whereby the assignee or subtenant shall assume all the obligations of
this Lease on the part of Tenant to be performed or observed and shall be
subject to all the covenants, agreements, terms, provisions and conditions in
this Lease. Notwithstanding any such sublease or assignment and the acceptance
of rent by Landlord from any subtenant or assignee, Tenant and any guarantor
shall remain fully liable for the payment of Base Monthly Rent and additional
rent due, and to become due hereunder, for the performance of all the covenants,
agreements, terms, provisions and conditions contained in this Lease on the part
of Tenant to be performed and for all acts and omissions of any licensee,
subtenant, assignee or any other person claiming under or through any subtenant
or assignee that shall be in violation of any of the terms and conditions of
this Lease, and any such violation shall be deemed a violation by Tenant. Tenant
shall indemnify, defend and hold Landlord harmless from and against all losses,
liabilities, damages, costs and expenses (including reasonable attorney fees)
resulting from any claims that may be made against Landlord by the proposed
assignee or subtenant or by any real estate brokers or other persons claiming
compensation in connection with the proposed assignment or sublease.
D. Reorganization of Tenant: The provisions of this Section 17.D shall
apply if Tenant is a corporation and: (i) there is a dissolution, merger,
consolidation, or other
Page 22
reorganization of or affecting Tenant, where Tenant is not the surviving
corporation, or (ii) there is a sale or transfer to one person or entity (or to
any group of related persons or entities) of stock possessing more than 50% of
the total combined voting power of all classes of Tenant's capital stock issued,
outstanding and entitled to vote for the election of directors, and after such
sale or transfer of stock Tenant's stock is no longer publicly traded. In a
transaction under clause (i) the surviving corporation shall promptly execute
and deliver to Landlord an agreement in form reasonably satisfactory to Landlord
under which such surviving corporation assumes the obligations of Tenant
hereunder, and in a transaction under clause (ii) the transferee or buyer shall
promptly execute and deliver to Landlord an agreement in form reasonably
satisfactory to Landlord under which such transferee or buyer assumes the
obligations of Tenant under the Lease.
E. Permitted Transfers: Notwithstanding anything contained in this Section
17, so long as Tenant otherwise complies with the provisions of this Article,
Tenant may enter into any of the following transfers (a "Permitted Transfer")
without Landlord's prior consent, and Landlord shall not be entitled to
terminate the Lease or to receive any part of any subrent resulting therefrom
that would otherwise be due pursuant to Sections 17.A and 17.B. Tenant may
sublease all or part of the Premises or assign its interest in this Lease to (i)
any corporation which controls, is controlled by, or is under common control
with the original Tenant to this Lease by means of an ownership interest of more
than 50%; (ii) a corporation which results from a merger, consolidation or other
reorganization in which Tenant is not the surviving corporation, so long as the
surviving corporation has a net worth at the time of such assignment that is
equal to or greater than the net worth of Tenant immediately prior to such
transaction; and (iii) a corporation which purchases or otherwise acquires all
or substantially all of the assets of Tenant so long as such acquiring
corporation has a net worth at the time of such assignment that is equal to or
greater than the net worth of Tenant immediately prior to such transaction.
F. Effect of Default: In the event of Tenant's default, Tenant hereby
assigns all rents due from any assignment or subletting to Landlord as security
for performance of its obligations under this Lease, and Landlord may collect
such rents as Tenant's Attorney-in-Fact, except that Tenant may collect such
rents unless a default occurs as described in Section 13 above. A termination if
the Lease due to Tenant's default shall not automatically terminate an
assignment or sublease then in existence; rather at Landlord's election, such
assignment or sublease shall survive the Lease termination, the assignee or
subtenant shall attorn to Landlord, and Landlord shall undertake the obligations
of Tenant under the sublease or assignment; except that Landlord shall not be
liable for prepaid rent, security deposits or other defaults of Tenant to the
subtenant or assignee, or for any acts or omissions of Tenant and Tenant's
Agents.
G. Conveyance by Landlord: As used in this Lease, the term "Landlord" is
defined only as the owner for the time being of the Premises, so that in the
event of any sale or other conveyance of the Premises or in the event of a
master lease of the Premises, Landlord shall be entirely freed and relieved of
all its covenants and obligations hereunder, and it shall be deemed and
construed, without further agreement between the Parties and the purchaser at
any such sale or the master tenant of the Premises, that the purchaser or master
tenant of the Premises has assumed and agreed to carry out any and all covenants
and obligations of Landlord hereunder. Such transferor shall transfer and
deliver Tenant's security deposit to the purchaser at any such sale or the
master tenant of the Premises, and thereupon the transferor shall be discharged
from any further liability in reference thereto.
F. Successors and Assigns: Subject to the provisions this Section 17, the
covenants and conditions of this Lease shall apply to and bind the heirs,
successors, executors, administrators and assigns of all Parties hereto; and all
Parties hereto comprising Tenant shall be jointly and severally liable
hereunder.
Page 23
18. OPTION TO EXTEND THE LEASE TERM:
A. Grant and Exercise of Option: Provided Tenant simultaneously exercises
its options for Buildings A, B, C, and D, Landlord grants to Tenant, subject to
the terms and conditions set forth in this Section 18.A, two (2) options (the
"Options") to extend the Lease Term for an additional term (the "Option Term").
Each Option Term shall be for a period of eighty four (84) months and shall be
exercised, if at all, by written notice to Landlord no earlier than eighteen
(18) months prior to the date the Lease Term would expire but for such exercise
but no later than twelve (12) months prior to the date the Lease Term would
expire but for such exercise, time being of the essence for the giving of such
notice. If Tenant exercises the Option, all of the terms, covenants and
conditions of this Lease except for the grant of additional Options pursuant to
this Section, provided that Base Monthly Rent for the Premises payable by Tenant
during the Option Term shall be the greater of (i) the Base Monthly Rent
applicable to the period immediately prior to the commencement of the Option
Term, and (ii) ninety five percent (95%) of the Fair Market Rental as
hereinafter defined. Notwithstanding anything herein to the contrary, (i) if
Tenant is in monetary or material non-monetary default under any of the terms,
covenants or conditions of this Lease either at the time Tenant exercises the
Option or at any time thereafter prior to the commencement date of the Option
Term, or (ii) if the net worth of Tenant as reported in Tenant's most recent
financial statements is less than the net worth of Tenant as of the date of
execution of this Lease, then Landlord shall have, in addition to all of
Landlord's other rights and remedies provided in this Lease, the right to
terminate the Option upon notice to Tenant, in which event the Lease Term shall
not be extended pursuant to this Section 18.A. As used herein, the term "Fair
Market Rental" is defined as the rental and all other monetary payments,
including any escalations and adjustments thereto (including without limitation
Consumer Price Indexing) that Landlord could obtain during the Option Term from
a third party desiring to lease the Premises, based upon the current use and
other potential uses of the Premises, as determined by the rents then being
obtained for new leases of space comparable in age and quality to the Premises
in the same real estate submarket as the Building. The appraisers shall be
instructed that the foregoing five percent (5%) discount is intended to offset
comparable rents that include the following costs which Landlord will not incur
in the event Tenant exercises its option (i) brokerage commissions, (ii) tenant
improvement allowances, (iii) building improvement costs, and (iv) vacancy
costs.
B. Determination of Fair Market Rental: If Tenant exercises the Option,
Landlord shall send Tenant a notice setting forth the Fair Market Rental for the
Option Term within thirty (30) days following the Exercise Date. If Tenant
disputes Landlord's determination of Fair Market Rental for the Option Term,
Tenant shall, within thirty (30) days after the date of Landlord's notice
setting forth Fair Market Rental for the Option Term, send to Landlord a notice
stating that Tenant either elects to terminate its exercise of the Option, in
which event the Option shall lapse and this Lease shall terminate on the
Expiration Date, or that Tenant disagrees with Landlord's determination of Fair
Market Rental for the Option Term and elects to resolve the disagreement as
provided in Section 18.C below. If Tenant does not send Landlord a notice as
provided in the previous sentence, Landlord's determination of Fair Market
Rental shall be the Base Monthly Rent payable by Tenant during the Option Term.
If Tenant elects to resolve the disagreement as provided in Section 18.C and
such procedures are not concluded prior to the commencement date of the Option
Term, Tenant shall pay to Landlord as Base Monthly Rent the Fair Market Rental
as determined by Landlord in the manner provided above. If the Fair Market
Rental as finally determined pursuant to Section 18.C is greater than Landlord's
determination, Tenant shall pay Landlord the difference between the amount paid
by Tenant and the Fair Market Rental as so determined in Section 18.C within
thirty (30) days after such determination. If the Fair Market Rental as finally
determined in Section 18.C is less than Landlord's determination, the difference
between the amount paid by Tenant
Page 24
and the Fair Market Rental as so determined in Section 18.C shall be credited
against the next installments of Base Monthly Rent due from Tenant to Landlord
hereunder.
C. Resolution of a Disagreement over the Fair Market Rental: Any
disagreement regarding Fair Market Rental shall be resolved as follows:
1. Within thirty (30) days after Tenant's response to Landlord's notice
setting forth the Fair Market Rental, Landlord and Tenant shall meet at a
mutually agreeable time and place, in an attempt to resolve the disagreement.
2. If within the 30-day period referred to above, Landlord and Tenant
cannot reach agreement as to Fair Market Rental, each party shall select one
appraiser to determine Fair Market Rental. Each such appraiser shall arrive at a
determination of Fair Market Rental and submit their conclusions to Landlord and
Tenant within thirty (30) days after the expiration of the 30-day consultation
period described above.
3. If only one appraisal is submitted within the requisite time period,
it shall be deemed as Fair Market Rental. If both appraisals are submitted
within such time period and the two appraisals so submitted differ by less than
ten percent (10%), the average of the two shall be deemed as Fair Market Rental.
If the two appraisals differ by more than 10%, the appraisers shall immediately
select a third appraiser who shall, within thirty (30) days after his selection,
make and submit to Landlord and Tenant a determination of Fair Market Rental.
This third appraisal will then be averaged with the closer of the two previous
appraisals and the result shall be Fair Market Rental.
4. All appraisers specified pursuant to this Section shall be members
of the American Institute of Real Estate Appraisers with not less than ten (10)
years experience appraising office and industrial properties in the Santa Clara
Valley. Each party shall pay the cost of the appraiser selected by such party
and one-half of the cost of the third appraiser.
D. Personal to Tenant: All Options provided to Tenant in this Lease are
personal and granted to Nvidia Corporation and are not exercisable by any third
party should Tenant assign or sublet all or a portion of its rights under this
Lease, unless Landlord consents to permit exercise of any option by any assignee
or subtenant, in Landlord's sole and absolute discretion. In the event Tenant
has multiple options to extend this Lease, a later option to extend the Lease
cannot be exercised unless the prior option has been properly exercised.
19. General Provisions:
A. Attorney's Fees: In the event a suit or alternative form of dispute
resolution is brought for the possession of the Premises, for the recovery of
any sum due hereunder, to interpret the Lease, or because of the breach of any
other covenant herein; then the losing party shall pay to the prevailing party
reasonable attorney's fees including the expense of expert witnesses,
depositions and court testimony as part of its costs which shall be deemed to
have accrued on the commencement of such action. The prevailing party shall also
be entitled to recover all costs and expenses including reasonable attorney's
fees incurred in enforcing any judgment or award against the other party. The
foregoing provision relating to post-judgment costs is severable from all other
provisions of this Lease.
B. Authority of Parties: Tenant represents and warrants that it is duly
formed and in good standing, and is duly authorized to execute and deliver this
Lease on behalf of said corporation, in accordance with a duly adopted
resolution of the Board of Directors of said corporation or in accordance with
the by-laws of said corporation, and that this Lease is binding upon said
corporation in accordance with its terms. At Landlord's request, Tenant shall
provide Landlord with corporate resolutions or other proof in a form acceptable
to Landlord, authorizing the execution of the Lease.
C. Brokers: Tenant represents it has not utilized or contacted a real
estate broker or finder with respect to this Lease other than CPS
Page 25
Commercial Real Estate and Tenant agrees to indemnify, defend and hold Landlord
harmless against any claim, cost, liability or cause of action asserted by any
other broker or finder claiming through Tenant.
D. Choice of Law: This Lease shall be governed by and construed in
accordance with California law. Except as provided in Section 19.E, venue shall
be Santa Clara County.
E. Dispute Resolution: Landlord and Tenant and any other party that may
become a party to this Lease or be deemed a party to this Lease including any
subtenants agree that, except for any claim by Landlord for unlawful detainer or
any claim within the jurisdiction of the small claims court (which small claims
court shall be the sole court of competent jurisdiction), any controversy,
dispute, or claim of whatever nature arising out of, in connection with or in
relation to the interpretation, performance or breach of this Lease, including
any claim based on contract, tort, or statute, shall be resolved at the request
of any party to this agreement through a two-step dispute resolution process
administered by J.A.M.S. or another judicial mediation service mutually
acceptable to the parties located in Santa Clara County, California. The dispute
resolution process shall involve first, mediation, followed, if necessary, by
final and binding arbitration administered by and in accordance with the then
existing rules and practices of J.A.M.S. or other judicial mediation service
selected. In the event of any dispute subject to this provision, either party
may initiate a request for mediation and the parties shall use reasonable
efforts to promptly select a J.A.M.S. mediator and commence the mediation. In
the event the parties are not able to agree on a mediator within thirty (30)
days, J. A. M. S. or another judicial mediation service mutually acceptable to
the parties shall appoint a mediator. The mediation shall be confidential and in
accordance with California Evidence Code ss. 1119 et. seq. The mediation shall
be held in Santa Clara County, California and in accordance with the existing
rules and practice of J. A. M. S. (or other judicial and mediation service
selected). The parties shall use reasonable efforts to conclude the mediation
within sixty (60) days of the date of either party's request for mediation. The
mediation shall be held prior to any arbitration or court action (other than a
claim by Landlord for unlawful detainer or any claim within the jurisdiction of
the small claims court which are not subject to this mediation/arbitration
provision and may be filed directly with a court of competent jurisdiction).
Should the prevailing party in any dispute subject to this Section 19.E attempt
an arbitration or a court action before attempting to mediate, the prevailing
party shall not be entitled to attorney's fees that might otherwise be available
to them in a court action or arbitration and in addition thereto, the party who
is determined by the arbitrator to have resisted mediation, shall be sanctioned
by the arbitrator or judge.
IF A MEDIATION IS CONDUCTED BUT IS UNSUCCESSFUL, IT SHALL BE FOLLOWED BY FINAL
AND BINDING ARBITRATION ADMINISTERED BY AND IN ACCORDANCE WITH THE THEN EXISTING
RULES AND PRACTICES OF J.A.M.S. OR THE OTHER JUDICIAL AND MEDIATION SERVICE
SELECTED, AND JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR(S) MAY BE
ENTERED BY ANY STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF AS PROVIDED BY
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1280 ET. SEQ, AS SAID STATUTES THEN
APPEAR, INCLUDING ANY AMENDMENTS TO SAID STATUTES OR SUCCESSORS TO SAID STATUTES
OR AMENDED STATUTES, EXCEPT THAT IN NO EVENT SHALL THE PARTIES BE ENTITLED TO
PROPOUND INTERROGATORIES OR REQUEST FOR ADMISSIONS DURING THE ARBITRATION
PROCESS. THE ARBITRATOR SHALL BE A RETIRED JUDGE OR A LICENSED CAlIFORNIA
ATTORNEY. THE VENUE FOR ANY SUCH ARBITRATION OR MEDIATION SHALL BE IN SANTA
CLARA COUNTY, CALIFORNIA.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE
ARISING OUT OF THE
Page 26
MATTERS INCLUDED IN THE "MEDIATION AND ARBITRATION OF DISPUTES" PROVISION
DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING
UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY
TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS
TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE
"MEDIATION AND ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE
UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO
THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING
OUT OF THE MATTERS INCLUDED IN THE "MEDIATION AND ARBITRATION OF DISPUTES"
PROVISION TO NEUTRAL ARBITRATION.
LANDLORD: ______ TENANT: _______
F. Entire Agreement: This Lease and the exhibits attached hereto contains
all of the agreements and conditions made between the Parties hereto and may not
be modified orally or in any other manner other than by written agreement signed
by all parties hereto or their respective successors in interest. This Lease
supersedes and revokes all previous negotiations, letters of intent, lease
proposals, brochures, agreements, representations, promises, warranties, and
understandings, whether oral or in writing, between the parties or their
respective representatives or any other person purporting to represent Landlord
or Tenant.
G. Entry by Landlord: Upon prior notice to Tenant and subject to Tenant's
reasonable security regulations, Tenant shall permit Landlord and his agents to
enter into and upon the Premises at all reasonable times, and without any rent
abatement or reduction or any liability to Tenant for any loss of occupation or
quiet enjoyment of the Premises thereby occasioned, for the following purposes:
(i) inspecting and maintaining the Premises; (ii) making repairs, alterations or
additions to the Premises; (iii) erecting additional building(s) and
improvements on the land where the Premises are situated or on adjacent land
owned by Landlord; (iv) performing any obligations of Landlord under the Lease
including remediation of Hazardous Materials if determined to be the
responsibility of Landlord, (v) posting and keeping posted thereon notices of
non-responsibility for any construction, alteration or repair thereof, as
required or permitted by any law, and (vi) showing the Premises to Landlord's or
the Master Landlord's existing or potential successors, purchaser, tenants and
lenders. Tenant shall permit Landlord and his agents, at any time within one
hundred eighty (180) days prior to the Expiration Date (or at any time during
the Lease if Tenant is in default hereunder), to place upon the Premises "For
Lease" signs and exhibit the Premises to real estate brokers and prospective
tenants at reasonable hours.
H. Estoppel Certificates: At any time during the Lease Term, Tenant shall,
within ten (10) days following written notice from Landlord, execute and deliver
to Landlord a written statement certifying, if true, the following: (i) that
this Lease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification); (ii) the date to which rent and other charges
are paid in advance, if any; (iii) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on Landlord's part hereunder (or specifying such
defaults if they are claimed); and (iv) such other information as Landlord may
reasonably request. Any such statement may be conclusively relied upon by any
prospective purchaser or encumbrancer of Landlord's interest in the Premises.
Tenant's failure to deliver such statement within such time shall be conclusive
upon the Tenant that this Lease is in full force and effect without
Page 27
modification, except as may be represented by Landlord, and that there are no
uncured defaults in Landlord's performance. Tenant agrees to provide, within
five (5) days of Landlord's request, Tenant's most recent three (3) years of
audited financial statements for Landlord's use in financing or sale of the
Premises or Landlord's interest therein.
I. Exhibits: All exhibits referred to are attached to this Lease and
incorporated by reference.
J. Interest: All rent due hereunder, if not paid when due, shall bear
interest at the rate of the Reference Rate published by Bank of America, San
Francisco Branch, plus two percent (2%) per annum from that date until paid in
full ("Agreed Interest Rate"). This provision shall survive the expiration or
sooner termination of the Lease. Despite any other provision of this Lease, the
total liability for interest payments shall not exceed the limits, if any,
imposed by the usury laws of the State of California. Any interest paid in
excess of those limits shall be refunded to Tenant by application of the amount
of excess interest paid against any sums outstanding in any order that Landlord
requires. If the amount of excess interest paid exceeds the sums outstanding,
the portion exceeding those sums shall be refunded in cash to Tenant by
Landlord. To ascertain whether any interest payable exceeds the limits imposed,
any non-principal payment (including late charges) shall be considered to the
extent permitted by law to be an expense or a fee, premium, or penalty rather
than interest.
K. Modifications Required by Lender: If any lender of Landlord or ground
lessor of the Premises requires a modification of this Lease that will not
increase Tenant's cost or expense or materially or adversely change Tenant's
rights and obligations, this Lease shall be so modified and Tenant shall execute
whatever documents are required and deliver them to Landlord within ten (10)
days after the request.
L. No Presumption Against Drafter: Landlord and Tenant understand, agree
and acknowledge that this Lease has been freely negotiated by both Parties; and
that in any controversy, dispute, or contest over the meaning, interpretation,
validity, or enforceability of this Lease or any of its terms or conditions,
there shall be no inference, presumption, or conclusion drawn whatsoever against
either party by virtue of that party having drafted this Lease or any portion
thereof.
M. Notices: All notices, demands, requests, or consents required to be
given under this Lease shall be sent in writing by U.S. certified mail, return
receipt requested, or by personal delivery addressed to the party to be notified
at the address for such party specified in Section 1 of this Lease, or to such
other place as the party to be notified may from time to time designate by at
least fifteen (15) days prior notice to the notifying party. When this Lease
requires service of a notice, that notice shall replace rather than supplement
any equivalent or similar statutory notice, including any notices required by
Code of Civil Procedure Section 1161 or any similar or successor statute. When a
statute requires service of a notice in a particular manner, service of that
notice (or a similar notice required by this Lease) shall replace and satisfy
the statutory service-of-notice procedures, including those required by Code of
Civil Procedure Section 1162 or any similar or successor statute.
N. Property Management: In addition, Tenant agrees to pay Landlord along
with the expenses to be reimbursed by Tenant a monthly fee for management
services rendered by either Landlord or a third party manager engaged by
Landlord (which may be a party affiliated with Landlord), in the amount of two
percent (2%) of the Base Monthly Rent.
O. Rent: All monetary sums due from Tenant to Landlord under this Lease,
including, without limitation those referred to as "additional rent", shall be
deemed as rent.
P. Representations: Tenant acknowledges that neither Landlord nor any of
its employees or agents have made any agreements, representations, warranties or
promises with respect to the Premises or with respect to present
Page 28
or future rents, expenses, operations, tenancies or any other matter. Except as
herein expressly set forth herein, Tenant relied on no statement of Landlord or
its employees or agents for that purpose.
Q. Rights and Remedies: Subject to Section 14 above, All rights and
remedies hereunder are cumulative and not alternative to the extent permitted by
law, and are in addition to all other rights and remedies in law and in equity.
R. Severability: If any term or provision of this Lease is held
unenforceable or invalid by a court of competent jurisdiction, the remainder of
the Lease shall not be invalidated thereby but shall be enforceable in
accordance with its terms, omitting the invalid or unenforceable term.
S. Submission of Lease: Submission of this document for examination or
signature by the parties does not constitute an option or offer to lease the
Premises on the terms in this document or a reservation of the Premises in favor
of Tenant. This document is not effective as a lease or otherwise until executed
and delivered by both Landlord and Tenant.
T. Subordination: This Lease is subject and subordinate to ground and
underlying leases, mortgages and deeds of trust (collectively "Encumbrances")
which may now affect the Premises, to any covenants, conditions or restrictions
of record, and to all renewals, modifications, consolidations, replacements and
extensions thereof; provided, however, if the holder or holders of any such
Encumbrances ("Holder") require that this Lease be prior and superior thereto,
within seven (7) days after written request of Landlord to Tenant, Tenant shall
execute, have acknowledged and deliver all documents or instruments, in the form
presented to Tenant, which Landlord or Holder deems necessary or desirable for
such purposes. Landlord shall have the right to cause this Lease to be and
become and remain subject and subordinate to any and all Encumbrances which are
now or may hereafter be executed covering the Premises or any renewals,
modifications, consolidations, replacements or extensions thereof, for the full
amount of all advances made or to be made thereunder and without regard to the
time or character of such advances, together with interest thereon and subject
to all the terms and provisions thereof; provided only, that in the event of
termination of any such lease or upon the foreclosure of any such mortgage or
deed of trust, Holder agrees to recognize Tenant's rights under this Lease as
long as Tenant is not then in default and continues to pay Base Monthly Rent and
additional rent and observes and performs all required provisions of this Lease.
Within ten (10) days after Landlord's written request, Tenant shall execute any
documents required by Landlord or the Holder to make this Lease subordinate to
any lien of the Encumbrance. If Tenant fails to do so, then in addition to such
failure constituting a default by Tenant, it shall be deemed that this Lease is
so subordinated to such Encumbrance. Notwithstanding anything to the contrary in
this Section, Tenant hereby attorns and agrees to attorn to any entity
purchasing or otherwise acquiring the Premises at any sale or other proceeding
or pursuant to the exercise of any other rights, powers or remedies under such
encumbrance.
U. Survival of Indemnities: All indemnification, defense, and hold
harmless obligations of Landlord and Tenant under this Lease shall survive the
expiration or sooner termination of the Lease.
V. Time: Time is of the essence hereunder.
W. Transportation Demand Management Programs: Should a government agency
or municipality require Landlord to institute TDM (Transportation Demand
Management) facilities and/or programs, Tenant agrees that the cost of TDM
imposed facilities and programs required on the Premises, including but not
limited to employee showers, lockers, cafeteria, or lunchroom facilities, shall
be paid by Tenant. Further, any ongoing costs or expenses associated with a TDM
program which are required for the Premises and not provided by Tenant, such as
an on-site TDM coordinator, shall be provided by Landlord with such costs being
included as
Page 29
additional rent and reimbursed to Landlord by Tenant within thirty (30) days
after demand. If TDM facilities and programs are instituted on a Project wide
basis, Tenant shall pay its proportionate share of such costs in accordance with
Section 8 above.
X. Waiver of Right to Jury Trial: Landlord and Tenant waive their
respective rights to trial by jury of any contract or tort claim, counterclaim,
cross-complaint, or cause of action in any action, proceeding, or hearing
brought by either party against the other on any matter arising out of or in any
way connected with this Lease, the relationship of Landlord and Tenant, or
Tenant's use or occupancy of the Premises, including any claim of injury or
damage or the enforcement of any remedy under any current or future law,
statute, regulation, code, or ordinance.
21. RIGHT OF FIRST OFFER TO PURCHASE:
A. Grant and Exercise of Option: In the event Landlord elects to
sell the Building either separately or as part of a larger sale including other
building(s) within the Project ("Offered Property"), Landlord (referred
hereinafter in this Section 21 as "Seller") hereby grants Tenant a right of
first offering to purchase. Prior to Seller committing to sell its interest in
the Offered Property to a third party, Seller shall give Tenant written notice
of such desire and the terms and other information under which Seller intends to
sell the Offered Property. Provided at the time of such written notice: (i)
Tenant leases at least two buildings within the Project; and (ii) Tenant is not
in default under the Lease beyond the expiration of any applicable cure period,
Tenant shall have the option, which must be exercised, if at all, by written
notice to Seller within thirty (30) days after Tenant's receipt of Seller's
notice, to purchase its interest in the Offered Property at the sales price and
terms of sale specified in the notice. In the event Tenant timely exercises such
option to purchase its interest in the Offered Property, Seller shall sell its
interest in the Offered Property to Tenant, and Tenant shall purchase its
interest in the Offered Property from Seller in accordance with the price and
terms specified in Seller's notice. Seller and Tenant shall, in good faith,
attempt to reach agreement on the terms of a mutually acceptable purchase
agreement consistent with the terms set forth in Seller's notice within thirty
(30) days of Seller's notice. In the event (i) Seller and Tenant are unable to
reach agreement on a mutually acceptable purchase agreement within such thirty
(30) day period or (ii) Tenant fails to exercise Tenant's option within said
thirty (30) day period, Seller shall have one hundred eighty (180) days
thereafter to sell its interest in the Offered Property at no less than ninety
five percent (95%) of the sales price and upon substantially the same other
terms of sale as specified in the notice to Tenant. In the event Seller fails to
sell its interest in the Offered Property within said one hundred eighty (180)
day period or in the event Seller proposes to sell its interest in the Offered
Property at less than ninety five percent (95%) of the sales price or on other
material terms which are more favorable to the prospective buyer than that
proposed to Tenant, Seller shall be required to resubmit such offer to Tenant in
accordance with this Right of First Offering except that Tenant shall be
required to respond to any resubmission within a seven (7) day period.
B. Exclusions: This Right of First Offering shall automatically
terminate, (i) upon the expiration or sooner termination of the Lease, or (ii)
in the event of a foreclosure or other involuntary transfer of Landlord's
interest in the Building. Further, this Right of First Offering shall not apply
to transfers (but shall survive such transfers ) of all or a portion of the
Building or Project to (i) John A. Sobrato and/or John M. Sobrato (individually
and collectively "Sobrato"), and (ii) any immediate family member of Sobrato,
and (iii) any trust established, in whole or in art, for the benefit of Sobrato
and/or any immediate family member of Sobrato, (iv) any partnership in which
Sobrato or any immediate family member, either directly or indirectly (e.g.,
through a partnership or corporate entity or a trust) retains a general partner
interest, and/or (v) any corporation under the control, either directly or
indirectly, by Sobrato or any immediate family member of Sobrato.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the day and
year first above written.
Landlord: Sobrato Interests III, Tenant: Nvidia Corporation,
a California Limited Partnership a Delaware Corporation
By: /s/ John Michael Sobrato * By: /s/ Jen-Hsun Huang
_____________________________ _____________________________
Its: Its:
_____________________________ _____________________________
* By: /s/ Christine B. Hoberg
_____________________________
Its:
_____________________________
* NOTE: This lease must be signed by two (2) officers of such corporation: one
being the chairman of the board, the president, or a vice president, and the
other being the secretary, an assistant secretary, the chief financial officer
or an assistant treasurer. If one (1) individual is signing in two (2) of the
foregoing capacities, that individual must sign twice; once as one officer and
again as the other officer and in such event, Tenant must deliver to Landlord a
certified copy of a corporate resolution authorizing the signatory to execute
this Lease.
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EXHIBIT "A" - BUILDING AND PROJECT
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EXHIBIT "B" - Declaration of Covenants, Codes and Restrictions
(to be attached)
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EXHIBIT "C" - Draft Letter of Credit
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EXHIBIT "D" - Building Shell Definition
1. Building Structure
(a) Foundations including footings, grade beams, or other building foundation
components required to support the building structure.
(b) Five inch (5") thick concrete slab on grade with welded wire mesh and any
other reinforcing or structural connections that may be necessary or required as
specified by structural engineer.
(c) Complete structural framing system comprised of rolled steel beams,
columns, and braced-frame steel construction with corrugated metal deck and
concrete fill, all members required by code to be fireproofed. Upper floor
systems provide a minimum of 3" concrete over metal deck and are designed for an
80 lb. live load plus 20 lb. partition load. Structural framing will include
intermediate beams for HVAC units at the roof, and for major shafts on each
floor.
(d) Performance glass with GFRC, stone, aluminum and stainless steel exterior
building skin. All exterior doors, door closer and locking devices as necessary.
(e) Four (4) ply built up roofing by Owens-Corning, John Manville, or equal and
all flashings over a perlite board and corrugated metal deck roof assembly.
Title 24 code required roof insulation is included.
(f) Exterior painting of all non-finished metals and caulking of all exterior
joints.
(g) Concrete pan-filled stairs in the interior core of each building, and two
(2) concrete pan-filled stair sets at the Building perimeter.
(h) Riser for building sprinkler system (no sprinkler grid or drops).
2. Sitework
(a) All work outside the building perimeter walls shall be considered site work
for the Building Shell and
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shall include asphalt concrete paving, parking (including a parking structure),
landscaping, landscape irrigation, storm drainage, utility service laterals,
curbs, gutters, sidewalks, retaining walls, planters, trash enclosures, parking
lot and landscape lighting and other exterior lighting per code.
(b) Paving sections for automobile and truck access shall be according to the
Geologic Soils Report.
(c) All parking lot striping to include handicap spaces and signage.
(d) Underground site storm drainage system shall be connected to the city storm
system main.
3. Plumbing
(a) Underground sanitary sewer laterals connected to the city sewer main in the
street and stubbed to the core of the building.
(b) Domestic water mains connected to the city water main in the street and
stubbed to the building.
(c) Roof drain leaders and downspouts piped and connected to the site storm
drainage system.
(d) Gas lines connected to the city or public utility mains and run to gas
meters adjacent to, and in close proximity to the building. Meter supplied by
utility company.
4. Electrical
(a) A primary and secondary electrical service from the street to the building
electrical room limited to underground conduit, pull-string, and transformer
pad. Transformer supplied by utility company.
(b) Two 4" underground conduit from the street to the building for telephone
trunk lines by Pacific Bell.
(c) An electrically operated landscape irrigation system, with controller, that
is a complete and functioning system.
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(d) Underground conduit with pull-string from the building to the main fire
protection system post indicated valve (PIV) for installation of supervisory
alarm wiring.
6. General
(a) All construction shall conform to State and Local Building Codes, Title 24
Regulations, and shall be ADA Compliant.
All other costs shall be deemed Tenant Improvements.
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